Mandatory vaccination: CCMA slams employee’s dismissal as ‘unconstitutional and unreasonable’

In an unprecedented decision on mandatory vaccination, the Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled in favour of an employee dismissed after she refused to get vaccinated on medical grounds, saying there was no law forcing employees to comply with compulsory vaccination.

The CCMA had in recent times ruled in favour of employers who had fired workers for their anti-vaccination stance regarding Covid-19. The advent of the pandemic saw some companies requiring that workers be vaccinated and even introduced company policies to get employees to comply.

Kgomotso Tshatshu, an inventory controller at medical supply company Baroque, took her employer to the CCMA after she was dismissed for not getting the jab as per company policy. She had decided not to get vaccinated after she suffered a negative reaction to a flu vaccine she took 10 years ago.

Her argument on constitutional grounds was that she had a right to bodily integrity and that vaccination drives taking place across the country were purely “experimental”.

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Tshatshu was requested to present medical evidence to support her stance.

Baroque didn’t accept the submissions of Tshatshu’s doctor, saying they were “vague”. She was instructed to go to private hospital MediClinic instead. She complied and was given the same assessment as her doctor, but the company rejected this again. The company then told her to see a specialist at the same private hospital, but the latter refused to draft a detailed report because Tshatshu was not sick.

She was fired last year, and the company refused to pay her severance package.

MediClinic, which is one of Baroque’s biggest clients, had written a letter to the company stating that they have mandatory vaccination in place and expected the same to be implemented at Baroque.

Tshatshu’s job didn’t require her to go to hospitals.

She argued that mandatory vaccination was unreasonable and no alternative was offered to her, and neither were employees involved in the risk assessment.

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‘Vaccine policies have no place in labour market’

Turning to the constitution’s Bill of Rights, senior commissioner Richard Byrne said everyone, and not just employees of a particular company, are equal before the law.

He said government and its entities have not unfairly discriminated against anyone in terms of vaccine policies, and that no law has been passed requiring that all employees or citizens be vaccinated.

“Our Judiciary, right from the Constitutional Court down to the Labour Court, and also including the CCMA and Bargaining Councils, have not instituted any rules amongst themselves requiring compulsory vaccinations. No State department, or organ of State has, to my knowledge, implemented anything of the sort. Why? Because that would amount to unfair discrimination and be unreasonable.”

He said governments across the globe have recommended vaccines for citizens and but have not legislated mandatory vaccination.

“The same vaccines have been administered to citizens internationally. Not one country, as far as I am aware, has proclaimed a compulsory vaccination for its citizens.”

Tshatshu’s employer, said Byrne, failed to produce evidence or risk assessment supporting the vaccination rule. No evidence from any organisation that implemented similar regulations was presented.

“They have not demonstrated the relationship between the rule and its objective. All they have is a nicely-worded policy document, but which does not speak to the reasonableness of the rule itself.”

He added that not many companies have vaccine policies, estimating the figure at “only 1%”. He said Baroque employees do not “live in a cocoon”, and have to interact with friends and families, and even visit stores and organisations that do not have mandatory vaccines.

Furthermore, said Byrne, the company’s repeated request for medical evidence was a “lip-service”, as they had not intended to change the vaccination policy.

“The outcome of this was that in any event, the applicant would have been retrenched, but that if she had a good reason to object to vaccination she would receive severance pay. Clearly, since the outcome was the same, severance pay would have been due. The lack of logic is astounding,” Byrne said.

He found that the vaccination rules were unreasonable, and Tshatshu’s dismissal unfair. The company was ordered to pay her a year’s salary, totalling R269,900, since she did not want to be reinstated.

‘Mandatory vaccinations have been upheld at Labour Court’

Labour law expert and attorney Avi Niselow said he was surprised by Byrne’s ruling because the Labour Court has upheld mandatory vaccinations in similar cases.

“It wasn’t just that that commissioner Byrne ruled that mandatory vaccinations are unlawful or unfair for some reasons, he ruled that all mandatory policies are unconstitutional… which I am quite surprised at. It would be interesting how the Labour Court reacts to this.”

He said he wouldn’t encourage those dismissed on vaccination reasons that then lost cases at the CCMA to take Byrne’s ruling and apply for reviews at the Labour Court, as this is not a court ruling.

“Because a different commissioner made a different ruling is not sufficient to obtain a review application.

“Another point to consider is that a CCMA commissioner doesn’t have the power to declare something unconstitutional. It will be interesting to hear what the Labour Court says, although that will take some time,” said Niselow.

Baroque legal adviser Alison Du Toit said the company is taking the ruling on review.

“We are filing papers at the Labour Court to challenge this CCMA outcome,” she said.

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