Post-probation dismissal for failing (not refusing) to vaccinate unfair: CCMA award

On 5 April 2022 the CCMA issued an award in the matter of Zaphia September v Inyosi Empowerment (WECT17050-21), where it held that the dismissal of an employee who failed (although not refused) to vaccinate against COVID-19 was both procedurally and substantively unfair.

20 Apr 2022 3 min read Employment Law Alert Article

At a glance

  • In a case between Zaphia September and Inyosi Empowerment, the CCMA ruled on April 5, 2022, that the dismissal of an employee who did not vaccinate against COVID-19 was procedurally and substantively unfair.
  • September was employed with a probation period and the employer had mentioned a potential mandatory vaccination policy in her contract.
  • The CCMA found that September's dismissal was unfair because she was not made aware at the start of her probation that vaccination was a requirement, and the employer had not implemented a mandatory vaccination policy at the time of arbitration.

September was employed on 8 September 2021, subject to a three-month probation period. Her contract stated that the employer was considering implementing a mandatory vaccination policy.

On 29 of October 2021, the employer arranged a workshop for its employees with two experts on vaccinations. The employer’s risk assessment plan was also provided to all employees, including September.

After attending the workshop, September was of the view that there was no debate on the implementation of the employer’s vaccination policy. September approached Jones, a director in the company, to discuss the policy and how it would work. Jones referred her to clause 11 of the employment contract, but also agreed to meet. They met on 7 December 2021.

At the meeting, Jones’ view was that there was no difference between antigen and PCR tests, while September considered the latter to be less invasive. She was leaning toward vaccinating, but had not decided and needed more time. This was the first time that the employer became aware that the employee was not vaccinated. At the end of the meeting, the employee was given two weeks’ notice of termination based on her probation period. She had until the following day, 8 December 2021, to decide whether she would vaccinate. If September presented a vaccination certificate within the notice period, he would retract the dismissal.

On 10 December 2021, Jones attempted to retract the dismissal by extending September’s probation period to 1 March 2022. September had until 1 March 2022 to get vaccinated. She rejected the extension and worked until the expiry of the notice period. Thereafter, she referred an unfair dismissal claim to the Commission for Conciliation, Mediation and Arbitration (CCMA).

At the CCMA, the employer argued that there was no dismissal. Once it retracted the dismissal, September was no longer dismissed. When she refused to accept the retraction, she in fact resigned. The CCMA rejected this proposition and reasoned that that when an employee resigns their employment and then seeks to withdraw the resignation, that can only be done with the consent of the employer. Conversely, where the employer has terminated the employment relationship by giving notice of termination, the employer needs the employee’s consent to a retraction. Without September’s consent, the dismissal remained in place.

The employer went on to argue that the requirement for vaccination was a new competency and given that September was unvaccinated, she was not competent for the position. The CCMA differed with the employer and held that the employee would have had to be aware at the commencement of her probation period that vaccination against COVID-19 was a requirement for successful completion of her probation period. This was not the case. A further consideration was the fact that at the time of arbitration, the employer had still not implemented a mandatory vaccination policy.

The CCMA further found that September was competent in terms of her performance of the job; was compatible with her colleagues; and there was no question of misconduct. She would certainly have her appointment confirmed if she had not asked for a discussion, initiated in good faith, on the mandatory vaccination policy which revealed her vaccination status and indecision on vaccination. The dismissal was thus unfair.

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