Law considers how much risk an unvaccinated person poses to colleagues

The Commission for Conciliation, Mediation and Arbitration (CCMA) has issued its first finding regarding the fairness of an employee's dismissal following her refusal to be vaccinated. On January 21, CCMA commissioner Lungile Matshaka held that an employee who refused to be vaccinated in terms of a mandatory vaccination policy was fairly dismissed for incapacity.

In this matter, the employer followed the process set out in the Consolidated Direction on Occupational Health & Safety Measures in Certain Workplaces. The employer undertook a risk assessment where it identified risks and hazards that affected its employees. Based on this assessment the employer formed a committee to review the assessment and determine methods to mitigate the risks. The employer determined a mandatory vaccination policy would mitigate the risks and decided to implement the policy.

Prior to implementation the employer consulted its employees and the applicable trade unions. The consultations included explaining the benefits of vaccinations and sessions with a traditional healer, a medical specialist and a human rights commissioner. The mandatory vaccination policy was also explained to the parties involved, including the procedure to follow to apply for exemption. The employer's stated aim of implementation of this policy was to protect its employees and provide a safe environment.

The applicant applied for a vaccination exemption in terms of the policy. Although she initially attempted to refuse vaccination on medical grounds (which her doctor reportedly refused to provide), she ultimately based her refusal on the following three grounds:

• She refused to be vaccinated based on her constitutional right of bodily integrity, including the right to make decisions concerning reproduction, security and control over her body and not to be subject to medical or scientific experiments without their consent.
• She indicated that she was experiencing extreme social pressure and emotional discomfort having to choose between her livelihood and accepting the vaccine. Specifically, she has an issue with waiving claims against the pharmaceutical companies for side effects of the vaccine. In addition, she was afraid of such side effects.
• Since the beginning of the pandemic she had strictly followed Covid-19 protocols and had successfully (to the best of her knowledge) avoided being infected. Therefore, she had not put her family or colleagues at risk of being infected. She also referred to information published by the World Health Organisation, which indicated that the vaccine does not stop the spread or contraction of Covid-19 but lessens the symptoms.      

The employee's application was refused because she was identified as a high-risk individual who interacted with colleagues and site owners on a daily basis in confined and uncontrolled environments. The employer found that she was exposing herself and others to a risk of infection. Based on the employee’s duties, there was no other position she could fill. Therefore, the employer dismissed her on the grounds of incapacity. 

The commissioner determined that the employer had taken all the steps required to implement a mandatory vaccination policy and provided a procedure for employees to apply for exemptions from the vaccine. In addition, the commissioner made reference to a memo by the deputy judge president of the Gauteng High Court, which states that “if one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of the individual.” Being influenced by the deputy judge president, as well as taking into consideration the above facts and evidence, the commissioner found that the employee was permanently incapacitated, and her dismissal was fair.

This decision provides important guidance for employers who plan to implement a mandatory vaccination policy. Employers must ensure that they follow the procedure set out in the Consolidated Direction on Occupational Health & Safety Measures in Certain Workplaces. This includes undertaking a risk assessment and ensuring a fair procedure is used to decide on applications for exemptions. The employer must consider each application for exemption and attempt to reasonably accommodate the employee. Where reasonable accommodation is not possible, the employee may be dismissed for incapacity.

The employer should not use a blanket approach when considering applications for exemption and the measures to implement for reasonable accommodation. Rather, the employee's specific health conditions and their role within the company should be analysed to determine the risk they are exposed to, and the risk they are exposing their colleagues to. Importantly, this award confirms that each individual owes it to their community to be civic minded and to make decisions which are in the legitimate interests of such community. This obligation equally applies in the workplace.

• Van der Colff is a senior associate and Gibson an associate, in the employment & compensation practice at Baker McKenzie Johannesburg.