CCMA upholds sacking of unvaccinated worker: 'Employer had no other choice'

26 January 2022 by Qama Qukula

  • The CCMA has ruled that a company’s decision to dismiss an unvaccinated worker is ‘substantively fair’
  • Labour law specialist Puke Maserumule says the CCMA judgment is precedent-setting but could still be challenged in the Labour Court

 

The Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that it was fair for a company to dismiss an employee for refusing to be vaccinated against Covid-19.

Labour law specialist Puke Maserumule says he’s not surprised by the CCMA judgment which could set a legal precedent for other matters before it and the Labour Court.

Gauteng-based company Goldrush Group announced plans to implement a mandatory vaccination policy last year.

Maserumule says it followed the various steps required before implementing the policy, including consultation and providing workers with the option of applying for an exemption.

Goldrush Group reportedly fired business and training officer Theresa Mulderiji after her application for an exemption from company policy was rejected.

The company was unable to move Mulderiji to another position because of the nature of her job.

“I’m not surprised given the circumstances here that the Commissioner concluded that… it was reasonable to expect employees to be vaccinated, procedurally they had been compliant, and the employee’s refusal left the employer with no alternative where there was no other position that could be offered to the employee.”

Puke Maserumule, Labour and employment law specialist – Maserumule Attorneys

Commissioner Lungile Matshaka found that Mulderiji had “refused to participate in the creation of a safe working environment”.

Maserumule says employers have a legal obligation to provide a healthy working environment and employees are obligated to cooperate in order to help facilitate it.

Maserumule says the government issued a directive on vaccination in the workplace in June last year which made “specific provisions for employers to be able to adopt a policy that makes vaccination mandatory”.

The Consolidated Direction on Occupational Health and Safety in Certain Workplaces was issued by the Department of Employment and Labour.

The directions make provision for employees to object to vaccination on specific grounds but they also allow “for an employer to terminate the employment of an employee where the employee refuses to be vaccinated, where the employer’s policy was justified and where the employer could not reasonably accommodate the employee”, Maserumule explains.

“It is precedent-setting. It’s something that we’ve been expecting to come along sooner or later and I’m not entirely surprised that finally, we have a written award from the CCMA upholding the right of the employer to implement a policy in respect of vaccination.”

Puke Maserumule, Labour and employment law specialist – Maserumule Attorneys

“I’ve looked through the award, it makes it quite clear that there was a process followed, there was consultation, the policy made provision for people to be able to apply for exemptions and to appeal against a decision refusing them an exemption.”

Puke Maserumule, Labour and employment law specialist – Maserumule Attorneys

Source: CapeTalk at https://www.capetalk.co.za/articles/437453/ccma-upholds-sacking-of-unvaccinated-worker-employer-was-left-with-no-other-choice?fbclid=IwAR3jgJKDHvkOadFZoVjGYOLxpbsLuqgEMzIp4gwELbhiD9KZi8Id_qno-4c