A growing number of South African businesses have announced plans to introduce mandatory Covid-19 vaccinations for staff, leading to an increase in legal questions around constructive dismissal and resignations.<\/p>\n
Employees may find themselves questioning whether they want to continue working for their employer in a situation where they are mandated to be vaccinated, says Bradley Workman-Davies, director at Werksmans Attorneys.<\/p>\n
Should an employee decide to resign rather than be vaccinated, a starting point to consider would be section 186(e) of the Labour Relations Act (LRA), he said.<\/p>\n
This section provides that it is considered to be an unfair dismissal when an employee terminates his\/her employment with or without notice because the employer made continued employment intolerable for the employee.<\/p>\n
“In other words, the employee must resign – which is not a dismissal by an employer – in circumstances in which the employee didn\u2019t want to actually do so, but staying employed was considered to be an intolerable option, due to the conduct of the employer.<\/p>\n
“This is referred to as a ‘constructive dismissal’, in which the employer is held responsible for making the working environment so toxic, deplorable or intolerable, that the employee simply could not endure it any longer and resigned as a result,” he said.<\/p>\n
An objective test\u00a0<\/strong><\/p>\n “The primary starting point when considering whether a constructive dismissal has occurred is to note that, since the employee is seeking to hold the employer responsible for the employee\u2019s actions, the normal onus which rests on the employer to prove that the dismissal was fair, is reversed, and the employee must prove that the employer\u2019s conduct led him\/her to resign,” said Workman-Davies.<\/p>\n He noted that this\u00a0is an objective test, and was summarised in the case of Botha v ARDT 2000 Trading CC trading<\/em> where it was stated that ‘a judicial officer should consider the conduct of the employer as a whole and decide whether it was so unbearable as to result into a decision of the employee to resign’.<\/p>\n The CCMA also stated that ‘in order to show that an employee\u2019s continued employment was intolerable, the employee must allege and prove facts that show that it was objectively the case‘.<\/em><\/p>\n “As such, the mere fact that the employee subjectively felt that he had no option other than to resign, does not demonstrate a constructive dismissal – it must be shown that a reasonable person in the same circumstances as the employee would also have felt no option other than to resign<\/strong>,” said Workman-Davies.<\/p>\n “Employers should be aware that if employees demonstrate a reluctance to be vaccinated, although they may threaten to do so, and may ultimately resign, provided that the employer has taken the necessary steps to adopt a vaccination policy, and is treating all employees fairly and consistently, it is unlikely to face legal consequences from employees who resign to avoid the vaccinated workplace.”<\/p>\n
\n