The long-awaited first CCMA award has been issued on a dismissal arising out of an employee refusing to be vaccinated.
The matter of Theresa Mulderij v Goldrush Group (GAJB24054-21), revolved around whether or not the employee’s dismissal for refusing to be vaccinated and subsequently being found to be incapacitated in the performance of her duties, was fair. The employer took the following steps to implement its Mandatory Vaccination Policy – it created a Mandatory Vaccination Policy Committee, it held consultations with trade unions and all employees for three months and held question and answer sessions with three specialists. Upon completion of the consultations, employees were afforded an opportunity to apply in terms of the exemption procedure set out in the Mandatory Vaccination Policy.
The employee applied for the exemption on the basis of her constitutional right to bodily integrity and that she felt “extreme social pressure and emotional discomfort being subjected into deciding between her livelihood and accepting the vaccine under the current conditions”, as well as fear as to what the vaccine could do to her. The employee requested, under the exemption procedure, to be offered alternative employment with the employer.
The Mandatory Vaccination Policy Committee declined the employee’s application on the basis that she was categorised as a high-risk employee who interacts with employees daily in confined and uncontrolled areas.
The employee was thereafter placed in an enquiry, during which the employer alleged that she was permanently incapacitated in the performance of her duties as she refuses to be vaccinated and by implication, the employee “refuses to participate in the creation of a safe working environment”. The presiding officer agreed with the employer and recommended a sanction of dismissal.
The CCMA Commissioner went on to uphold the employee’s dismissal on the basis that he was in agreement that there is a duty of care owed to colleagues and others whom the employee comes into contact with and, consequently, by virtue of the employee’s refusal to get vaccinated, she was rendered permanently incapacitated.
Prior to her dismissal, the employee was employed as a Business Related and Training Officer. Unfortunately, the CCMA award does not go into detail about the nature of the employer’s operations and/or the employee’s duties, save to state that the nature of her duties required her to be on site and to interact with site-owners and employees in confined and uncontrollable spaces. It is however important to bear in mind that the crux of this matter lies in this detail.
Nevertheless, this award is likely to be the beginning of lengthy debate and argument, destined for determination by our top courts.
