REFUSAL TO BE VACCINATED – CCMA FINDS DISMISSAL SUBSTANTIVELY FAIR

In the matter between Kok and Ndaka Security Services, Kok refused to be vaccinated and as a result, Ndaka Security Service (“the employer”) refused him access to the place of work. 

The CCMA found that the employer’s refusal to allow Kok access to his place of work was “equal to a suspension”. In other words, this amounted to an unfair labour practice as defined in Section 186 (2)(b) of the Labour Relations Act. 

Kok refused to be vaccinated for reasons which included: 

“The experimental nature of the vaccine, freedom of religion and his natural body immunity against COVID-19”. 

The employer’s line of work involved providing services to Sasol, who had a mandatory vaccination requirement. Kok also refused to undergo weekly COVID-19 tests at his own expense. 

The CCMA found that the suspension was fair. 

To find that the exclusion of Kok from his employer’s premises as a result of his refusal to be vaccinated was a suspension, is with respect, probably legal gymnastics! On review, the Labour Court may well find similarly that the CCMA did not have jurisdiction to entertain Kok’s dispute as it was not a suspension. 

It appears that the Government does not have the political will to introduce mandatory vaccinations; and it is going to be up to employers, restaurants and supporting bodies to ensure that people who interact socially are vaccinated. 

Although, considering the recent relaxation of the COVID-19 regulations in respect of social distancing and isolation, the legality surrounding COVID-19 vaccinations may become very academic. 

The Commissioner in the Ndaka Security Services matter relied heavily on the requirements of the Occupational Health and Safety Act, which places a duty on employers to provide a safe working environment. 

In our opinion, if employers are contemplating terminating employees’ contracts of employment for refusing to be vaccinated, the appropriate procedures to be followed, are set out in Section 189 of the Labour Relations Act; namely operational requirements. 

The ever-present risk of an operational requirements termination being found to be a termination lockout, because of unilateral change to terms and conditions of employment still lurks, and employers who wish to proceed in this manner, should do so with caution and not without seeking legal advice. 

Clients are reminded of the recent Constitutional Court Judgment of Aveng v Numsa. Considering the above, it seems that the best approach to adopt, is to simply exclude employees who refuse to be vaccinated after the necessary risk assessments have been undertaken, and the detailed procedure as set out in the Goldrush Group Award has been followed. 

We again stress the importance of taking reliable and reputable advice before following any of these processes. 

Written by: 

DUNSTAN FARRELL