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CCMA victory on vaccinations may be the start of a long court battle, lawyer fears

04 July 2022 - 14:23
CCMA senior commissioner Richard Byrne ruled that dismissal of the employee due to her refusal to be vaccinated was unfair. File photo.
CCMA senior commissioner Richard Byrne ruled that dismissal of the employee due to her refusal to be vaccinated was unfair. File photo.
Image: REUTERS/Siphiwe Sibeko

A recent ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) has found a workplace mandatory Covid-19 vaccination policy to be unlawful, ordering that an employee’s dismissal for refusing to get the jab was unfair and awarding her a year’s salary as compensation.

However, advocate Vusi Masango, who represented Kgomotso Tshatshu against Baroque Medical, said on Monday he feared the CCMA victory may be the start of a long court battle, potentially holding up payment of the funds to his client.

“This is going to be an important matter. The chances are it is going to be reviewed at the labour court,” he said.

Tshatshu had an adverse reaction to a flu jab a decade ago and was resistant to taking Covid-19 vaccines. This was in conflict with her company’s mandatory vaccination policy. 

Senior CCMA commissioner Richard Byrne found: “An employer has no right to formulate any Covid-19 vaccination mandate. It is the prerogative of government.

Everyone, not just employees of a particular company, are equal before the law. The state has not unfairly discriminated against anyone in terms of vaccine policies. No legislation has been passed requiring all employees or citizens be vaccinated.

“When considering the equality clauses, freedom and security of the person, limitations of rights, the lack of reasonableness of the rule, government’s response to and the regulations it issued, it becomes unmistakably clear the right to issue any law of general application in respect of Covid-19 vaccinations rests with the government.”

The rule regarding vaccinations was therefore unreasonable.

“I take into account that the dismissal was substantively unfair — in fact, unconstitutional. The dismissal should not have occurred and the applicant has lost employment she has had for years due to, in effect, the employer’s breach,” the judgment read.

He ordered that the employee should be paid 12 months’ compensation, which amounts to about R279,000.

Masango told TimesLIVE it was a victory for his client and other employees who are subjected to similar situations.

“She was happy, but this is probably just the start of things. She is not paid yet as per the award.”

He said if the ruling was reviewed, the award could be suspended pending the outcome.

His firm had represented her on a pro bono basis and if the matter was taken to the labour court, it would be difficult for her to afford a legal representative, Masongo said.

“Where will [she] get money to push this case?”

He said according to his experience, the review could take a year.

Law firm ENS Africa noted the CCMA ruling was in contrast with a previous ruling by another commissioner relating to the same employer and the same mandatory vaccination policy.

In the first CCMA dispute involving Baroque Medical, ENS Africa said the CCMA found the employer was justified in implementing mandatory vaccination in the workplace as a mechanism to curb absenteeism related to Covid-19 and that a failure to vaccinate led to a substantively fair dismissal for operational requirements.

Tshatshu, who produced medical certificates from doctors regarding her health, challenged the implementation of the policy. She argued that meetings were mostly being done remotely, she was given a laptop and worked alone in a boardroom and social distancing and other protocols were in place. She did not see the need for the vaccine mandate.

“A key takeaway from this award is that employers, regardless of the reason for the imposition of a mandatory vaccination policy in the workplace, must ensure that, in any dispute relating to the reasonableness of the policy, they are able to (and then do) lead evidence regarding the justification of mandatory vaccination in the workplace.

“In this instance, Baroque Medical should have led evidence regarding their intolerance for absenteeism, which could have included evidence relating to the impact of past Covid-19 related absenteeism and/or the specialised nature of their work and their inability to staff posts in instances of absence.

“While this award will surely attract attention, it is not a foregone conclusion it will be followed by other commissioners.”

Commenting on the latest ruling, the National Employers Association of SA said it has always held the view that the directives and codes dealing with Covid-19 in the workplace were unconstitutional and, apart from infringing on the constitutional rights of employees, held serious liability risks for employers electing to implement a mandatory vaccination policy.

“It is our view this award is correct in its reasoning,” it said.


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