This article was first published by BizNews on 9 May 2023
Covid mandated vaccines
The Covid-19 pandemic was disruptive as it destabilised global systems of governance and domestic institutions, as the virus spread around the world. South Africa was not immune to this challenge and the government, like many others, responded by instituting a Covid-19 policy framework. Similarly, the private sector also responded to this by implementing their own Covid-19 policies such as, institutional mandatory vaccination policies. But these have not gone without a challenge. This case discussion focuses on Tshatshu vs Baroque Medical (Pty) Ltd.
The case at hand is between Ms Kgomotso Tshatshu (Applicant) and Baroque Medical (Pty) Ltd (Respondent).
Baroque Medical implemented a mandatory Covid-19 Vaccination policy which prescribed that all employees are to be vaccinated, proof of which should be furnished. Failure to comply with the policy could result in employment being terminated and there has no alternatives to this policy.
Ms Tshatshu, who worked as a Senior Inventory Controller, refused to comply with the vaccination policy as she was hesitant considering that she had previously had an adverse reaction to the influenza vaccine 10 years prior. Baroque Medical requested proof of her vaccine injury, and Ms Tshatshu complied with the request twice by visiting two different doctors. However, Baroque Medical did not accept the medical notes as sufficient. Ms Tshatshu then approached a specialist doctor on Covid-19 matters but he refused to write a detailed report for Ms Tshatshu.
Baroque Medical decided to retrench Ms Tshatshu without severance pay. Was the dismissal fair? The Commissioner in the CCMA matter had to consider the reasonableness of a mandatory vaccination policy implemented by the Respondent, and whether the dismissal was substantively fair.
The Commissioner analysed the Bill of Rights and made significant reference to section 9. Specifically, that everyone is equal before the law and that the state had not implemented legislation that required all citizens to be vaccinated. State institutions had also not implemented mandatory vaccination policies, as this would amount to unfair discrimination. Such discrimination would need to be proven fair in terms of subsection (5). The Commissioner found that this policy was unfair and unreasonable as the Respondent had not provided any evidence to demonstrate the effectiveness of such a policy in any other organization.
In addition, the Commissioner pointed out that the Consolidated Directive issued in terms of Regulation 4(10) of the Regulations issued under section 27(2) of the Disaster Management Act 57 of 2002, did not permit a "blanket mandatory vaccination policy". The Commissioner also questioned the logic of such a policy, since employees could still be at risk of contracting COVID-19 while interacting with numerous people who are not subject to mandatory vaccination.
The Commissioner also found fault with the Respondent's argument that the Applicant was only entitled to severance pay if she had to provide a reasonable and substantiated medical certificate. The Commissioner held that regardless of whether the Applicant provided such a certificate, the Respondent would have dismissed her anyway. Therefore, the Respondent did not offer an alternative to the Applicant other than vaccination.
The Commissioner's award communicates a clear stance that a blanket mandatory vaccination policy has no place in the labour market. It is also worth noting that this award could still be taken on review to the Labour Court.
In conclusion, this case highlights the importance of employers having to carefully consider the reasonableness of any mandatory vaccination policies they may wish to implement. Employers should also ensure that they do not violate any applicable regulations or legislation in implementing such policies. Furthermore, it is crucial that employers provide alternative options to employees who may have valid medical reasons for refusing to be vaccinated. Moreover, this policy demonstrates how Covid-19 policy was made without considerations for real world implications. To this day government has not answered for the reasoning behind their Covid-19 policy – policy which was oftentimes confusing and violated Human Rights
In Mulderij and Goldrush Group, the case involves an employee who refused to comply with her employer's mandatory vaccination policy and was dismissed on the grounds of permanent incapacity. The employee challenged the substantive fairness of her dismissal, but the Commissioner found that the employer had followed a fair process and that the employee's refusal to be vaccinated had resulted in her permanent incapacity, which endangered herself and her colleagues. The case highlights the importance of balancing the employer's obligation to provide a safe working environment with the employee's rights to bodily and psychological integrity and the need for clear policies and processes regarding mandatory vaccination and exemption applications.
Whereas in Kok and Ndaka Security and Services it concerns an employee who was denied access to the workplace due to his refusal to be vaccinated, and whether this amounted to an unfair labour practice. An employee who was denied access to the workplace due to his refusal to be vaccinated, highlights the need for employers to balance the public interest in limiting the spread of COVID-19 with the rights of individual employees. The commissioner found that the employer's decision was not unfair, considering the public interest in limiting the spread of COVID-19 and the effectiveness of vaccination. However, the case highlights the need for employers to consider alternative measures for accommodating employees who refuse to be vaccinated, and to ensure that any policies are in accordance with relevant legislation. Employers must balance the public interest with the rights of individual employees.
These two cases were prior to the Tshatshu arbitration, and their judgements are important in the context of the ongoing COVID-19 pandemic, where employers are increasingly considering mandatory vaccination policies to ensure a safe and healthy working environment.
Overall, these two judgements underscore the importance of employers to carefully consider the implications of mandatory vaccination policies in the workplace, balancing the public interest with the rights of individual employees, and ensuring compliance with relevant legislation. As the pandemic continues, these issues will likely remain at the forefront of workplace safety and employee rights considerations. The case in Tshatshu demonstrates that vaccination policies may not be absolute in combatting illnesses in the workplace and have the potential to undermine the Constitutional rights of employees in the workplace.
Furthermore, it has the potential to build on the fact that the government does not have an absolute power in prescribing what its citizens can do in the event of disasters. Covid-19 was unprecedented and no government nor its private institutions have had any blueprint on how to deal with employees. Tshatshu re-emphasises that despite workplaces having the right to create standards and codes of conduct they should refrain from limiting the rights of citizens and affecting rights such as, the right to equality.
Covid-19 policy framework is not linear for both government and the private sector as there needs to be a consideration of rights that citizens and employees are entitled to. Thus, when creating policy around health and safety, especially in the workplace an appreciation for context is key. Furthermore, protecting rights and ensuring reasonableness is supreme.
Covid-19 policies in the workplace raises the question as to whether institutions alongside the government should have a final say in deciding the bodily integrity of employees and citizens. The Covid-19 regulations by government, while somewhat effective in combatting the spread of the virus, were unprecedented. The decisions made by government oftentimes appeared to be made without rationality, such as the alcohol ban. Covid-19 was a cautionary tale for the protection of rights of citizens and the potential for their infringements by both the private and public sectors of life.