A recent Commission for Conciliation, Mediation and Arbitration (CCMA) case determined what happens when an employee is retrenched based on their refusal to get vaccinated in light of a vaccination policy – and whether they are subject to severance pay.
The applicant and employee refused to comply with a compulsory Covid-19 vaccination policy implemented by her employer, a medical supply company.
The applicant refused to comply on “medical, personal and religious reasons”, but failed to substantiate her medical grounds at all stages of the process, said Cliffe Dekker Hofmeyr.
The questions asked before the CCMA included:
- Can an employer retrench an employee who does not comply with a mandatory vaccination programme?
- Is the employee entitled to severance pay if they are retrenched by an employer for refusing to get the vaccine?
After assessing the evidence and arguments submitted by both parties, the commissioner concluded that the respondent had made out a case for the retrenchment process that it had embarked upon, said Cliffe Dekker Hofmeyr.
The commissioner also found that the applicant’s objections on personal and religious grounds did not have any merit.
Consequently, the applicant was retrenched on the basis of operational requirements. After assessing the evidence and arguments submitted by both parties, the commissioner concluded that the respondent had made out a case for the retrenchment process that it had embarked upon.
“The rationale for the decision to impose a mandatory vaccination policy is clear: in supplying medical products to a number of medical disciplines, the respondent engages with hospitals and medical practitioners,” said the commissioner.
“Accordingly, to safeguard its own employees and ensure that the operations of the employer are not severely affected by absences as a result of staff contracting the Covid-19 virus and that those entities and individuals that had contact with staff members of the employer are adequately protected, it embarked on a risk assessment which made it apparent that a mandatory vaccination policy had to be imposed,” added the commissioner.
Cliffe Dekker Hofmeyr noted that the risk assessment conducted by the company, as well as the policy itself, were never challenged by the applicant.
Since the employer’s evidence in this regard remained unchallenged, it was accepted by the commissioner, who stated that he was satisfied that the respondent had shown the implementation of the policy was a justifiable operational requirement.
The procedural fairness of the applicants dismissal was not challenged, the only challenge dealt with the substantive fairness of her dismissal, where the respondent did not adequately consider alternatives to retrenchment.
The medical supplier added that the was no reasonable alternative due to the applicants duties needing her present at the office, said Cliffe Dekker Hofmeyr.
The commissioner added that the respondent had not committed any wrongdoing in its decision to terminate the Applicants services by reason of operational requirements.
The final issue that the Commissioner considered was whether the applicant was entitled to severance pay. In this regard, section 41(2), read together with section 41(4), of the Basic Conditions of Employment Act 75 of 1997 (BCEA) was considered, said Cliffe Dekker Hofmeyr.
The BCEA provides that an employee who unreasonably refuses to accept an employer’s offer of alternative employment with that employment with that employer or any other employer, is not entitled to severance pay in terms of section 41(2), it added.
In determining the issue, the commissioner referred to Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union, in which the court considered a previous examination of the scope of section 41(2), read together with section 41(4), of the BCEA.
“Zondo JP held that there was no basis by which an employee could obtain both severance pay and alternative employment. There was however a case where the employee would get neither severance pay nor alternative employment,” said the legal firm.
This would occur when the applicant themself was to blame because they acted unreasonably in refusing the offer of alternative employment.
The commissioner then referred to Freshmark (Pty) Ltd v CCMA and Others, in which the court held that an offer by an employer to an employee of his or her position on different terms constitutes an offer of alternative employment – it is the employment that should be alternative, not the position
The commissioner held that the different condition was the vaccination requirement, which, given the Respondent’s operations, became an operational requirement. Accordingly, the Applicant had the choice to vaccinate and retain her employment, said Cliffe Dekker Hofmeyr.
“However, she refused to vaccinate and her refusal to do so had no merit and was accordingly unreasonable. The commissioner then held that it would be grossly unfair to expect the respondent to pay any severance pay in the circumstances,” stressed Cliffe Dekker Hofmeyr.
- Commentary by Cliffe Dekker Hofmeyr