REFUSAL TO BE VACCINATED

LABOUR COURT DECLARES DISMISSAL UNFAIR

Dear employer

In the matter of Cecillia Bessick v Baroque Medical, the Labour Court had to grapple with the issue as to whether the retrenchment of the Applicant was fair, due to her refusal to be vaccinated against Covid-19.

The Court had to determine whether the employer complied with the obligations imposed on it by the Labour Relations Act (the Act) and the “Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace” (the Code).

In the present matter, the employer implemented a mandatory vaccination policy in the workplace, which required all employees to be vaccinated and indicated that refusal to be vaccinated could lead to dismissal due to the operational requirements of the employer.

The Applicant refused to be vaccinated and cited a number of constitutional grounds as reasons for her refusal. These grounds were rejected out-of-hand by the employer.

The employer proceeded with a retrenchment consultation and indicated that the only alternative to retrenchment is to be vaccinated. The employee was subsequently retrenched.

The Labour Court determined that section 189 of the Act obligated the employer to assess any possible alternatives to retrenchment and to provide reasons as to why they are not viable. Furthermore, the Code requires employers to, where necessary, reasonably accommodate employees who refuse to be vaccinated.

The Court ultimately found that the actions of the employer did not comply with these obligations as the mandatory policy was final, with no room for discussion, and the alternative of getting vaccinated, to avoid retrenchment, was no alternative at all. Therefore, the employer failed to consider any alternatives, as required by the Act, and failed to even attempt to accommodate the employee as required by the Code.

The dismissal was found to have been unfair, and the employee was awarded 12 months’ compensation.

It has long been common cause that the Code was never intended to allow for a blanket mandatory vaccination policy, and simply creates more obligations and risks for all, without any conceivable benefit.

For more information.

NEASA Media Department

media@neasa.co.za

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