9 January 2022
For many South Africans the Covid-19 pandemic has brought waves of uncertainty. Throughout, the pinnacle of uncertainty has always rested with the implications of the virus for the South African workforce.
The detection of the Omicron variant and President Cyril Ramaphosa’s announcement that the government would be looking into the possibility of mandatory vaccinations have provoked a new wave of uncertainty among the public, particularly around the question of whether a refusal to get vaccinated can warrant dismissal. Can an employer dismiss an employee for refusing to get vaccinated? And would such dismissal be permissible in terms of the Labour Relations Act 66 of 1995 (the LRA)?
Fair dismissal of an employee by an employer
Our law specifies that dismissal would be rendered unfair if it is unjust and if it does not follow a fair procedure.
The LRA recognises three substantive grounds for legitimate – and thus fair – termination of employment by the employer. These grounds are: misconduct by the employee; incapacity of the employee; and the operational requirements of the employer’s business.
Misconduct by the employee as a ground for dismissal relates to the employee being in contravention of a workplace rule. The rule must be one that is lawful and reasonable; the employee must have had knowledge of the rule; the rule must be uniformly applied; and dismissal must be the appropriate sanction in the circumstance.
Dismissal which relates to the incapacity of the employee is when the employee renders poor work performance, or fails to meet a certain performance standard. Incapacity also comes into play when the employee is incapable of performing the work as a result of poor health or an injury.
The final ground which constitutes a fair reason for dismissal is that of operational requirements, which relates to the economical, technological, structural or similar needs of the employer.
On 11 June 2021, the Consolidated Directions on Occupational Health and Safety Measure in certain workplaces (“the directives”) were gazetted in terms of the National Disaster Regulations, the regulations that the government has used to manage its Covid-19 response.
In terms of the directives, implementing a mandatory vaccination policy in the workplace is not a simple matter: employers who intend to introduce mandatory vaccination must undertake a risk assessment and identify employees who work in situations where the risk of transmission is high due to the nature of their work and where the risk for severe Covid-19 disease or death is high due to an employee’s age or comorbidities. Employers must develop a Covid-19 vaccination plan (or amend their existing plan) to include the measures set out in the directives (a copy of the measures set out in the directives can be found on the government website).
The content of the plan must take into account the size and the nature of the business, as well as any collective agreement that is in place in order to ensure that the vaccination plan is not in conflict with such collective agreement. The vaccination plan would be based largely on the risks that have been identified in the risk assessment. Once a risk assessment has been done to identify employees who must be vaccinated, and a vaccination plan has been developed, appropriate measures must be in place to implement it.
An employee can refuse vaccination by relying on a right contained in the Constitution, such as section 15, which regulates the right to freedom of conscience, religion, thought, belief and opinion. An employee can also rely on section 12, which deals with the right to bodily integrity, or refuse on medical grounds. However, an employee relying on such grounds will have to show that such refusal forms part of their religious beliefs and/or their system of beliefs which will have to be based on a longstanding and established principle in their religion/system of beliefs. If they rely on refusal to get the vaccine on medical grounds, they would have to demonstrate that receiving the vaccine poses an adverse medical effect on them and their health. In terms of these requirements, employees whose refusal is based on unfounded vaccination theories which are conspiratorial in nature will most likely not succeed with their ground of refusal.
Dismissal based on misconduct
The question that arises is whether refusal from the employee can warrant dismissal based on misconduct.
In terms of the directives, if an employee refuses vaccination based on any constitutional or medical ground, the employer must first consider a range of factors before contemplating dismissal. These factors include counselling the employee and, if requested, allowing them to seek guidance from a health and safety representative, worker representative or trade union official. The employer should also refer the employee for further medical evaluation should there be any contra-indication for vaccination, for instance if the employee has a condition that, if vaccinated, could cause them harm. Finally, the directives suggest that if the employer has concluded that it is necessary for employees in the workplace to be vaccinated based on the particular circumstances prevailing there, the employer must reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
If an employee is dismissed as a result of misconduct, they must be in contravention of a workplace rule. Here, even though the refusal to vaccinate in essence contravenes the employer’s vaccination policy, which would constitute a workplace rule, the directives have crisply covered the steps that an employer must embark on when faced with a situation where an employee refuses vaccination. In terms of the directives, dismissal ought to be the absolute last resort of the employer.
Dismissal based on operational requirements
Dismissals based on operational requirements are categorised as no-fault dismissals. In other words, it is not the employee who is responsible for the termination of employment. The LRA therefore places particular obligations on an employer in order to ensure that all possible options to dismissal are explored and that the employee to be dismissed is treated fairly.
In the case of an employee who is refusing to be vaccinated, before the employer can dismiss them based on operational requirements, the employer would first have to follow the steps set out in the directives. Arguably, only when the employer is not able to reasonably accommodate the employee in a position that does not require the employee to be vaccinated can the employee be dismissed.
In all cases, a dismissal must be substantively and procedurally fair. Procedural fairness deals with the procedural steps that must be followed during the process of dismissal. The LRA describes fair procedure as informing the employee of allegations raised against them in a form and language they can understand. They must be given an opportunity to respond to the allegations and be given sufficient time to prepare and to seek assistance from a trade union representative or a fellow employee. The result of the enquiry must be communicated to the employee.
The rules of fair procedure apply before an unvaccinated employee can be dismissed. The risk assessment specified by the directives must critically examine the operational requirements of the workplace and assess whether a mandatory vaccination policy is justified. The risk assessment will identify the types of employees that must be vaccinated (through their age, comorbidities and their type of work, i.e. interaction with the public) and also consider whether there is enough ventilation and acceptable social distance between employees. Employees and relevant stakeholders must be consulted throughout this process in order to address all concerns.
Where the employer determines that the mandatory vaccination of its employees is justified, a plan must be developed outlining how vaccinations will be implemented taking into account all the different rights of the employees.
Where an employee refuses to take the vaccine and exercises their constitutional right, the employer must reasonably accommodate the employee – this could potentially be through working remotely, moving the employee to a department with less risk, or providing the employee with an N95 mask.
Should an employer not be in a position to accommodate the employee, or the employer has taken all reasonable steps and the employee refuses to be vaccinated as per the vaccination plan, the employee does face the risk of dismissal.
In conclusion, the legal position on vaccine refusal remains untested. The directives provide a good point of departure for considering the issue and offer useful guidelines to employers and employees who are navigating this question. However, it is likely that we will need legislative intervention as well as assistance from the courts to provide clarity and set much-needed precedent on whether an employer can dismiss an employee for refusing to get vaccinated and whether such dismissal would be permissible in terms of the LRA. The uncertainty over whether employees can be told to get vaxxed or get sacked will be with us until this is resolved.
Source: Daily Maverick at https://www.dailymaverick.co.za/opinionista/2022-01-09-get-vaxxed-or-get-sacked-is-dismissal-of-employees-for-refusing-to-get-vaccinated-permissible-in-the-labour-relations-act/?fbclid=IwAR001IA7w_7ccaSaG1qxeDkFxpFtWH95cuZ5CbpxZSz93ls_V2veNQaw-_Y