The recent Commission for Conciliation, Mediation and Arbitration (CCMA) ruling in favour of mandatory vaccinations is likely to strongly influence the decision to dismiss employees who refuse to vaccinate, says the National Employers Association of South Africa (Neasa)
However, employers are cautioned that this ruling does not diminish the risk to have an adverse finding made against them, should they decide to follow this route, the group said.
“An arbitration award does not create a precedent and is therefore not binding on other commissioners. Only the substantive fairness of the dismissal was in dispute and the laborious procedural requirements were not canvassed at all.”
The question as to whether mandatory ‘vaccinations’ are reasonable and lawful limitations of constitutional rights, remains unanswered, it said.
“Each individual case, and the operations of each particular workplace, will have to be assessed on its own merits. The award does not create a carte blanche for employers to do as they see fit.
“Employers will, therefore, be well advised to approach this issue with extreme caution until our courts have provided legal certainty and clarity.”
Anastasia Vatalidis, director and head of Labour & Employment Practice at Werksmans Attorneys, said the ruling had set the cat amongst the pigeons but was certainly not the final word on mandatory vaccinations.
Speaking to radio station 702, Vatalidis said legal experts have been waiting with bated breath for some indication from the country’s courts and tribunals, with the recent ruling providing affirmation to employers that they are in the right by introducing mandates.
However, she reiterated that each company will need to consider the issue on a case-by-case basis.
She pointed to the fact that the employee in the recent CCMA case was a frontline worker, was working in close proximity and in confined quarters with other employees, and had direct contact with clients.
“What this case didn’t go into detail about, was the medical evidence that substantiates and supports vaccination versus non-vaccination, so I think what will become more prevalent – the issue of whether vaccinated individuals pose less of a threat in the workplace.
“Certainly, the more the public at large are putting pressure on employers, the more likely it is that they will begin to swing in favour of mandatory vaccination in order to keep their businesses afloat.”
The battle is just beginning
According to the Eastern Cape provincial manager for the Consolidated Employers Organisation (CEO SA), Daniel van der Merwe, while the case has certainly given businesses a better indication of how the CCMA and various bargaining councils may reason when deciding the fairness of dismissals related to mandatory vaccination policies (MVPs), this is only the start.
“Seeing as the current matter is still novel in nature, it is highly probable that either this arbitration award – or many more that are sure to come on this topic – will find their way to either the Labour Court or the Constitutional Court.
“Such courts will undoubtedly develop the law relating to this subject matter in far greater detail and provide employers and employees alike with a better understanding of how MVPs may be implemented and how the balancing of respective rights will be interpreted,” he said.
“It remains to be seen how the higher courts will reason with regards to the balancing of individuals’ Constitutional rights and the concurrent limitation that may be imposed upon them as well.”
Vatalidis said that, although this case is arguably an important decision, it is unlikely to be the final pronouncement on this issue.
“A number of cases in various fora, including the Labour Court and the High Court, are pending pronouncement in relation to this question, and it is anticipated that these cases will shed more light on whether employers may adopt mandatory vaccination policies, whether employees may be dismissed for refusing the Covid-19 vaccine and if so, the process that an employer should follow to give effect to such dismissal,” they said.
“Considering the right to refuse the Covid‑19 vaccine on Constitutional grounds, it is inevitable that these issues will finally be determined by the Constitutional Court.”