Following the introduction of the Directive, the employer introduced a mandatory vaccination policy, which the employee elected not to comply with. Consequently, the employee was called to attend an incapacity enquiry on 28 October 2021. Following the incapacity enquiry, the chairperson concluded that the employee was permanently incapacitated as a result of her failure to be vaccinated and participate in promoting a safe and healthy working environment. The chairperson found that the incapacity was permanent as the employee had no intention of ever being vaccinated. The employees’ contract was terminated.
The employee referred a dispute to the CCMA, challenging the substantive fairness of her dismissal. The Commissioner noted that the employee had placed reliance on her right to bodily and psychological integrity in terms of section 12(2) of the Constitution in her exemption application. The employer’s Exemption Committee, which was formed in terms of its mandatory vaccination policy, considered and declined her application. The reasons for doing so were that the employee was a high-risk individual who interacted with her colleagues daily, whilst on duty in a confined and uncontrollable space, placing those colleagues at risk of possible infection.
The Commissioner considered both the process that the employer had undertaken, as well as the reasoning of the Exemption Committee, and found that, in the interest of fairness, the only possible conclusion was that the employee was permanently incapacitated. This conclusion was founded on the employee’s decision to not get vaccinated and the implication thereof of refusing to create a safe and healthy working environment, an obligation imposed on both the employer and the employee in terms of the Occupational Health and Safety Act 85 of 1993.