Much attention has been paid to the position adopted by trade union federation Cosatu in relation to employers who have adopted a mandatory vaccination policy, but it doesn’t mean they are going away in South Africa say legal experts.

The country’s largest trade federation has criticised Standard Bank after it dismissed approximately forty employees for refusing the bank’s mandatory vaccination policy.

In addition, the South African Society of Bank Officials (Sasbo) has adopted the position that it is better to encourage vaccinations as opposed to imposing them. Standard Bank has recently withdrawn its mandatory vaccination policy, but it doesn’t mean they are going away.

Cosatu and Sasbo also appear to have been encouraged by a recent CCMA ruling which found that the dismissal of an employee for failure to comply with the employer’s mandatory vaccination policy was unfair. This CCMA award also determined that a mandatory vaccination policy was unconstitutional.

“Arguably this award overstepped the boundaries of the jurisdiction of the CCMA, which in the case of determining whether an employee’s dismissal is fair must solely concern itself with whether the employer had a fair reason to dismiss the employee, and whether it followed a fair procedure in doing so,” said Bradley Workman-Davies, director at Werksmans Attorneys.

The CCMA commissioner held that only government has the right to formulate a vaccination policy, and not an employer. The requirement of the employer to vaccinate being held to be unconstitutional, the dismissal of the employee was accordingly found to be unfair.

“However, this award is problematic for a number of reasons, not least of which is that it deviates from all previous CCMA awards on the topic, but fundamentally errs by purporting to give the CCMA commissioner the power to make a constitutional ruling,” said Workman-Davies.

“This is a function reserved, properly, for the Constitutional Court itself. As such, any reliance by Cosatu and Sasbo on this ruling would be dangerous ground.”

Regulations

Workman-Davies also pointed to the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, gazetted at the end of June, which explicitly provide for mandatory vaccination policies.

He noted that the code entitles an employer to implement a mandatory vaccination policy after conducting a risk assessment in respect of its particular workplace and workforce profile.

“As such, the current legislative framework still entitles employers to conduct this assessment and in fact, if there are sufficient health and safety factors pointing towards the prevalence of Covid-19 being a risk to health and safety in the workplace, for reasonable safety measures – which may include the mandatory vaccination of employees – to be put in place.

“Employers should take comfort that if they have followed the code and conducted a risk assessment which lead to the conclusion that the implementation of a mandatory vaccination policy was or remains a reasonable safety measure, any dismissal of employees for failure to comply has generally been accepted by the CCMA as fair, and the recent case is an anomaly and whose findings on unconstitutionality are not binding.”

For so long as Covid-19 remains a hazardous biological agent, as recognised by the new code, mandatory vaccination policies may be viewed as a reasonable measure to ensure the health and safety of employees, he said.

“Each case, as always, must be assessed on its own merits.”

• By Bradley Workman-Davies, director at Werksmans Attorneys