Following news coverage regarding the CCMA’s recent finding regarding Mandatory Workplace Vaccination Policies, we would like to share some thoughts on this matter.

Since early on the 26th of January 2022, we have been following, with interest, the summary of a recent CCMA Arbitration Award as brought to our attention by the prestigious law firm, Cliff Dekker Hofmeyr (Read Here).

Following this, we managed to obtain a copy of the Arbitration Award just as News24 broke the news (Link to article).

In summary, the

CCMA pronounced on the contentious issue of Mandatory Workplace Vaccination in this matter (Attached Full Arbitration Award). While this seems like a victory for employers who have sought to impose such policies, we must caution against relying on this Award by itself.

A proper reading of the award clearly states that an exemption panel considered the exemption application by the Applicant, and with reasons (Which were not made available in the Award, however we have it on good authority that they were well presented and legally sound) denied the application. After this, the Applicant could appeal said application which was also necessarily unsuccessful before an Incapacity Enquiry was convened.

Of very specific note is that even during this enquiry, and subsequently in the CCMA, the Applicant did not change her mind, meaning that this supported the Permanence of the incapacity which is an inherent requirement for dismissal to be appropriate. Along with the specific job requirements and circumstances of her unique case.

This does not, however, mean that such policies can now be enacted and enforced at will. A lot of legal steps need to be in place to ensure the success of such an approach, and despite this, a CCMA Award is not binding on other CCMA Commissioners (It does not set precedent). Meaning that on the exact same set of facts, a different commissioner may well find a different outcome.

Given the press interest, it remains likely that a civic rights movement or organization may fund the Applicant’s review to the Labour Court, where the matter may well be referred to the Constitutional Court given the nature of the Applicant’s defence, and only once a higher court has found on this matter, will it bind the CCMA in future cases.

I also remind our members that the legal costs involved in pursuing such a matter through the courts can escalate rapidly and exceed a Million Rand by the time the Constitutional Court has heard it, not even considering the issues of costs which may be awarded by the court.

While this is a definite signal on the part of the CCMA of its intent in such matters, we remain cautiously interested in seeing how the process unfolds going forward. We hope that the above answers some of the questions that our members may have given the news coverage on this issue and the contentious nature of the core issues.

Update – 28 January 2022

Following the abovementioned Unfair Dismissal case of Theresa Mulderij v Goldrush Group GAJB24054-21 (CCMA), it has since transpired that the CCMA again heard a matter in Gideon J Kok v Ndaka Security and Services FSKW2448-21 (CCMA) wherein an employee was, in practice, placed on unpaid suspension for failing to adhere to a mandatory vaccination policy.

It should be noted that in this case, the employer offered the Employee two options, being that he may either become vaccinated, or, at his own expense, provide the Employer with weekly negative COVID-19 test results.

As the Employee rejected both of these offers, he was place on what amounts to an unpaid suspension (no-work-no-pay). The employee challenged this approach in the CCMA and again the CCMA found in favour of the Employer insofar as the fairness of the suspension of this Employee.

This is a clear indication that the CCMA is sending a strong message and we await the decisions of the Labour Courts in these types of dispute.

For more information or assistance in ensuring that your workplace remains compliant, please contact HR City.

Eben van Deventer          082 412 2845     eben@hrcity.co.za
AJ van Niekerk                  079 890 4411     aj@hrcity.co.za
Elri de Bruin                      082 753 5695     elri@hrcity.co.za
Riané Smith                       071 687 1485     riane@hrcity.co.za
Conrad Luus                      072 624 3410     conrad@hrcity.co.za

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