25 January 2022 by Employment Law Alert

The CCMA pronounces: Dismissal for refusing to get vaccinated is fair

On 21 January 2022, the CCMA published its award in the matter of TM v Goldrush Group (GAJB 24054-21) where it held that the dismissal of an employee who refused to be vaccinated was fair. The Commissioner was tasked with determining whether the employee’s dismissal was substantively fair based on incapacity for her refusal to be vaccinated.

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.

download PDF

The information and material published on this website is provided for general purposes only and does not constitute legal advice.

We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter.

We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.

Please refer to the full terms and conditions on the website.

Copyright © 2022 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us cliffedekkerhofmeyr@cdhlegal.com

You may also be interested in