Bankey Sono | Director | Werksmans Attorneys | mail me |
Hot off the heels of a number of awards by the Commission for Conciliation Mediation and Arbitration (CCMA) which upheld mandatory vaccination policies in the workplace, the CCMA has recently declared mandatory vaccination policies to be unconstitutional.
About the case
The employee was employed as Senior Inventory Controller. The employer supplies Cardio, Endocrine and Neurological equipment to hospitals and other end users.
On 22 July 2021, the employer communicated its mandatory vaccination policy. In terms of clause 6 it was a requirement for all employees to vaccinate and clause 10 stated that ’employees who refuse to be vaccinated will be in breach of the Company Policy and their services may then be terminated for operational reasons’.
After the refusal of the employee to vaccinate, the employer took the decision to retrench her. The employee referred an dismissal dispute related to operational requirements to CCMA related to the non-compliance with the employer’s mandatory vaccination policy.
The CCMA was therefore called upon to determine whether the dismissal of the applicant was fair or not.
The CCMA verdict
The CCMA held that the dismissal of the employee was substantively unfair and in the words of the senior commissioner ‘in fact unconstitutional’. The commissioner was of the view that mandatory vaccination policies are unconstitutional and that the rule in respect of mandatory vaccination was unreasonable.
Despite the nobility of the declaration by the CCMA, only the High Court can pronounce on the unconstitutionality of a policy and the said unconstitutionality has to be confirmed by the Constitutional Court. Constitutionality simply does not fall within the purview of the CCMA.
Furthermore on 22 June 2022 the Minister of Employment and Labour published the Code of Practice: Managing Exposure to SARS-CoV 2 in the Workplace, Government Notice No. 46596 which remains applicable.
In terms of this code, employers may continue developing and enforcing mandatory vaccination policies. This is subject to employers firstly conducting a risk assessment and concluding a plan in terms of which employees identified in the risk assessment must be vaccinated.
Enforcing mandatory vaccination
It is the outcome of the risk assessment that directs the employer’s decision whether or not to have a mandatory vaccination policy in place, in order to ensure the safety of their workplace.
The obligation to ensure safety in the workplace stems from the Occupational Health and Safety Act (OHSA) read together with Regulations to the OHSA and the code itself.
Whilst the award raises interesting and important questions surrounding the constitutionality of mandatory vaccination policies, in the face of the code, there is nothing in the law as it currently stands that prohibits employers from having and enforcing mandatory vaccination policies in respect of their individual workplaces.
Ms Sono is actually incorrect in her statement that there is “nothing in the law as it currently stands that prohibits employers from having and enforcing mandatory vaccination policies in respect of their individual workplaces”. There are several laws that this contravenes and not least of which is the right to bodily integrity and the right to choose what medical therapeutics or treatments they undergo – which is not in conflict at all with anyone else’s right to be protected in the workplace. There is more than sufficient evidence that the vaccines have virtually no efficacy in prevention of transmission of covid and therefore there is no rationale behind vaccine mandates whatsoever, and even if it was efficacious – if other staff chose to be vaccinated they would have no danger from someone who was not vaccinated – so the prevention of injury theory is a poorly thought out argument.
The second issue is the matter of the declaration of Geneva and the Universal declaration of human rights that was adopted by the United Nations as internationally binding, of which South Africa is a signatory. The declaration makes it clear that personal autonomy is sacrosanct and that no-one can be forced to undertake medical experimentation.