12 June 2021 by Roland Mpofu
VICTIMISE workers who refuse to be vaccinated at your own peril. That’s South Africa’s largest labour federation Cosatu’s warning to employers as the Covid-19 vaccination drive gets in full swing, with some people still having misgivings about the potential side effects of the shots.
Cosatu national spokesperson Sizwe Pamla issued the stern warning amid videos of purported side effects of the vaccines going viral on social media, spreading panic around the world.
Pamla said any attempt by employers to fire employees who refuse to take the vaccine will be challenged in the courts.
“Administering vaccines, like all medications, is based on consent. No worker can be forced to vaccinate.
“Workers who decline to be vaccinated must be offered options to work in other jobs or places within their workplace that would not necessitate getting vaccinated like working from home, working away from other members of the public, etc.
“Any attempt to dismiss a worker will be challenged in the CCMA (Commission for Conciliation, Mediation and Arbitration) and Labour Courts,” said Pamla.
However, he did not discourage workers from taking part in the inoculation programme.
“We are encouraging all workers to register for and receive their vaccines.
“Cosatu has held extensive engagements with the departments of health as well as employment and labour and organised labour on this issue over the past few months.
“A ministerial directive has been agreed to by government, business and labour on the rolling out of the vaccines at workplaces.
“We are guided by the principle that no one can be forced to take a vaccine. All medications are consensual and this is a standard practice,” he explained.
“The president and the ministers of health and labour have agreed to Cosatu’s insistence that no one can be forced to vaccinate, including workers.
“Our objective is that we must persuade and encourage everyone to vaccinate but not force them,” said Pamla.
Pamla said employers, when drafting health and safety plans for the workplace, including the roll-out of vaccines, need to engage with unions and workers as such plans were subject to collective bargaining.
“Cosatu has engaged on the workplace vaccination directives at its recent CEC (central executive committee). Affiliates are undertaking educational programmes to ensure workers are aware of their rights and to assist any worker who may be subject to victimisation by their employer.”
Public Servants Association of SA (PSA) assistant general manager Reuben Maleka echoed Pamla’s sentiments.
“We have publicly encouraged our members to take vaccines voluntarily and at the same time made them aware, through our newsletters, that they should guard against being victimised should they wish not to be vaccinated. The Employment Equity Act is sufficient to protect our members against any form of discrimination and including victimisation,” said Maleka.
However, Dr Anzanilufuno Munyai, a practical business law lecturer at the University of Johannesburg, said the individual’s right to consent is subject to limitations, according to our Constitution.
To explain this, she cited two legal precedents, one of minister of Health vs Goliath, where the issue of compulsory admission to Brooklyn Chest Hospital was found to be legally justifiable.
“In the case the court held that indeed, for the sake of public interest and considering the duty of the State to control the spreading of diseases, the constitutional rights of the respondents ought to be limited and the limitation is justifiable in that it held, in part, …in principle, the limitation on the freedom of movement of patients with infectious diseases is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom,” said Munyai.
Another case on Section 12(2) of the Constitution is the minister of safety and security v Gaqa. The accused had a bullet lodged in his leg and the applicants sought its removal for ballistic tests.
“The court ordered the surgical removal of a bullet and held that the respondent’s interests in all the circumstances are of lesser significance… community interests must prevail.”
Munyai further warned: “Considering precedents on Section 12(2) and Section 36 of the Constitution and constant development of laws, policies and regulations; it is possible that South Africa could develop and implement a compulsory vaccination policy which might yield legal implications for those who refuse to vaccinate.”
Source: IOL at https://www.iol.co.za/sundayindependent/news/unions-say-workers-cant-be-forced-to-take-covid-19-shots-21a95bb3-b346-40f9-b675-99448c159f3b?fbclid=IwAR0j_c1bWt6jpr6Y5ecR-_pLUj-_cYg2_4Ko8jUMlZm_KgGl8HvNk_NAyTM