Labour court dismisses bid to stop mandatory Covid-19 jabs

An urgent application by trade union Solidarity challenging a Pretoria-based company’s policy on mandatory Covid-19 vaccinations was struck off the labour court roll in Johannesburg on Thursday.

The union approached the court on an urgent basis on behalf of members Wynand Fransua Coertzen and Stephanie Christensen who are employed by human and industrial relations solutions provider Seesa as software developer and legal adviser respectively.

Solidarity wanted the court to issue an order declaring unlawful the refusal by Seesa to allow Coertzen and Christensen to continue with their duties.

Other relief sought was for the court to declare the company’s mandatory vaccination policy and admission policy unlawful; and prevent Seesa from starting a retrenchment process against Coertzen until it complied with “a lawful procedure”.

The company’s policy on mandatory vaccinations states that due to operational needs and occupational health and safety obligations “it concluded that vaccination will be mandatory for all employees”.

Labour court acting judge Tameshnie Deane struck the urgent application from the roll and ordered Solidarity to pay Seesa’s costs.

In a statement on Thursday Seesa said it welcomes the judgment. “Our main priority remains the health and safety of all our staff and clients. Seesa will continue to impartially advise clients according to the relevant directives and legislation, irrespective of their stance on mandatory vaccination,” it said.

Solidary head of communication Morne Malan said that only the urgency of the urgency was dealt with by the labour court, but would not say when the matter would be heard “as we are still waiting for confirmation from the court”.

The judgment follows recent rulings by the Council for Conciliation, Mediation and Arbitration (CCMA) in which it upheld as fair a company’s decision to dismiss an employee who refused to get vaccinated. In another ruling on January 25, the CCMA ruled that a private security company’s decision to suspend Gideon Kok was not an unfair labour practice.

Kok was suspended from duty on November 1 after refusing to take a Covid-19 jab. Kok’s employer is a private security company working with Sasol, which requires a 100% vaccination rate for all employees, contractors and suppliers at its workplaces.

In a statement on Wednesday, Gerhard Papenfus, CEO of the National Employers Association of SA (Neasa), which represents 1,800 businesses employing 65,000 workers, took exception to the CCMA awards being portrayed as “blanket permission to dismiss employees for refusing to be vaccinated”. The decision to dismiss was bad in law and would be reviewed by the labour court.

“The fact remains that CCMA awards do not create precedent, [are] not binding and [are] subject to review by higher courts, which, in all probability, will set these decisions aside,” Papenfus said.

“The fact that the government has, to date, not implemented mandatory vaccination legislation is a telltale sign of the complexities surrounding this issue and the limitation of rights. The government rather decided to pass the buck to employers to drive its vaccination initiative, while the government is exempted from any liability or pushback in this regard.”

Papenfus added that should employers force employees “by way of coercion or threat of dismissal to be vaccinated against their will, or dismiss those who refused to do so, they may well face class action lawsuits or liability claims down the road, should the courts determine that their actions were unlawful and unconstitutional”.

In its founding affidavit, which Business Day has seen, Solidarity said it was approaching the labour court in the interests of Coertzen and Christensen “whose employment prospects and career opportunities stand to be prejudiced and unlawfully infringed upon as a consequence of Seesa refusing its employees access to the workplace due to their vaccination status purportedly imposed by a mandatory Covid-19 policy”.

Christensen consented in the end to getting vacinated on December 20 and is set to receive her second dose on January 31, according to the affidavit. When she reported for duty on January 4, she was denied entry, with the national manager saying “had she obtained the vaccine earlier it would not have been a problem”.

Meanwhile, Coertzen was informed on December 30 that because he had elected not to be vaccinated, he would not be allowed access to Seesa’s premises on January 3, no further instructions to perform work would be provided to him and he would not be remunerated. He was presented with a retrenchment notice on January 14.

mkentanel@businesslive.co.za