BRENTWOOD

2022-01-26

CCMA rules fair dismissal of an unvaccinated employee

The CCMA found that the dismissal of an employee for refusing to be vaccinated to be substantively fair. The employee was employed as a business-related and training officer. The company implemented a mandatory vaccination policy in 2021. The employer, Goldrush, argued that the employee’s decision to not get vaccinated incapacitated her, and dismissed her for incapacity.

The commissioner said:
“In my own sense of fairness, I can only conclude that the applicant is permanently incapacitated on the basis of her decision to not get vaccinated and, by implication, refusing to participate in the creation of a safe working environment”.

Before implementing the policy, the company management spent three months consulting with workers and their unions. Employees had to confirm receipt of the mandatory workplace vaccination policy, that it was explained to them, that they understood it, and that they had read it.

Because of the nature of the employee’s job,  she could not be accommodated or moved to another position.  Her job required her to interact with site owners and employees.

In her evidence, the employee stated that it was her constitutional human right to refuse to vaccinate, and felt extreme social pressure and emotional discomfort to decide between her livelihood and accepting the vaccine.

Important aspects of this fair dismissal.
This ruling is not a blanket permission to dismiss anti-vaxxers.  The factors which contributed to the fairness of the dismissal include:
- The company had an existing mandatory vaccination policy.
- The basis of the mandatory vaccination policy was the employers obligation for a safe workplace.
- The policy had been consulted with employees and unions, and training on the policy rolled out.
- Employees had signed that they had received the training on the policy, understood, read and  accepted it.
- The procedure for exemptions from the policy were explained.
- The employee applied for exemption. In this case she claimed her constitutional rights. The exemption application was rejected.
- The reason was for rejection was:
o She could not be accommodated anywhere else in the company.
o The nature of her job required face to face contact with employees, trainees and clients.

As with any dismissal the correct procedure was followed in terms of the procedure to implement the mandatory policy, and the reason for dismissal was appropriate, in relation to her core job function, which could not be changed to accommodate her decision not to be vaccinated.

Grounds for refusal to vaccinate:
An employee can refuse vaccination by relying on:
- The right to freedom of conscience, religion, thought, belief and opinion. The employee would need to show that the refusal forms part of their system of beliefs based on a longstanding and established principle in their system of beliefs.
- The right to bodily integrity, which requires demonstration that receiving the vaccine poses an adverse medical effect on their health.
Conspiracy theories: refusals based on unfounded vaccination theories will most likely not succeed with their application for exemption.

Before dismissal is considered:
If an employee refuses vaccination based on any constitutional or medical ground, the employer must first consider a range of factors before contemplating dismissal. These factors include:
- Counselling.
- if requested, allowing them to seek guidance from a health and safety representative, worker representative or trade union official.
- The employer should also refer the employee for further medical evaluation should there be any contra-indication for vaccination, for instance if the employee has a condition that, if vaccinated, could cause them harm.
- if the employer concludes that it is necessary for employees in the workplace to be vaccinated based on its particular circumstances, the employer must reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
- The employer must reasonably accommodate the employee, which may include working remotely, moving the employee to a department/position with less risk, or providing the employee with an N95 mask.
- Should accommodation not be possible, and the employer has taken all reasonable steps and the employee refuses to be vaccinated, dismissal may be appropriate.
- Dismissal is the absolute last resort.

When clients insist on mandatory vaccinations
- Many of the mines are barring the unvaccinated, as are a growing number of companies and universities.  Employers who service the mines, for instance, have unvaccinated employees whose job function involve the mines predominantly would have to make a decision, as in this case, between their livelihood and vaccination.  The mines can, and are, refusing to allow the non-vaccinated to protect their employees.  Following process, this could be grounds for dismissal.

Mandatory policy requirements.
The Consolidated Directions on Occupational Health and Safety Measure made it clear that implementing a mandatory vaccination policy in the workplace is not a simple matter:
- employers who intend to introduce mandatory vaccination must undertake a risk assessment and identify employees who work in situations where the risk of transmission is high due to the nature of their work and where the risk for severe Covid-19 disease or death is high due to an employee’s age or comorbidities.
- Employers must develop a Covid-19 vaccination plan to include the measures set out in the directives. The content of the plan must take into account:
o the size and the nature of the business,
o any collective agreement that is in place in order to ensure that the vaccination plan is not in conflict with such collective agreement.
o the risks that have been identified in the risk assessment
- Once a risk assessment has been done and a vaccination plan has been developed, measures must be in place to implement it.
Employers have a statutory obligation to provide a safe and healthy working environment.

Please don’t tackle this sort of dismissal alone – speak to your consultant before you start this process.