Johannesburg woman's dismissal for refusing to take Covid-19 jab is justified, says CCMA

The Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that the dismissal of a woman for refusing to get vaccinated is justified.

Theresa Mulderij of Johannesburg worked as a business-related and training officer at Goldrush Group. She had been working for the company since 2018 and earned R13,000 a month at the time of her dismissal.

She went to the CCMA to lodge a dispute for unfair dismissal after she was fired from her job for refusing to be vaccinated against Covid-19. Her case was set down for hearing on January 10 at which she represented herself. The verdict was delivered on January 20.

Goldrush told the CCMA it had implemented mandatory vaccination after consultations with employees and unions over three months.

An overview of the benefit of vaccinating had been provided to employees who attended the consultations. Mulderij, however, refused to get vaccinated.

A representative of the company told the commission there was no other position in which she could be placed as she interacted with site owners and other employees.

In her argument for refusing to be vaccinated, Mulderij said it was her constitutional right that she be exempted.

She felt “extreme” social pressure and emotional discomfort having to decide between her livelihood and having to get the vaccine.

She had a personal fear of what the vaccine could do to her and possible side-effects.

Mulderij said she had thought through her decision and while she accepted others' choice to get inoculated, she wanted the same respect to be afforded to her.

Since the start of the Covid-19 pandemic she had followed protocols introduced by government. She and her family members had not been infected and she believed they had not been carriers.

CCMA commissioner Lungile Matshaka noted the company had an exemption clause as part of its policy, which Mulderij had applied for but was turned down.

It emerged during the hearing that she had consulted doctors to obtain a medical exemption, but they declined to provide her with one. She then cited her constitutional rights to bodily integrity.

The application was turned down by the exemption committee. “The committee identified her as a high-risk individual who interacts with colleagues daily while on duty in confined, uncontrollable spaces. This, according to the committee, put her at risk and exposes other colleagues to risk.”

Matshaka found that she had been permanently incapacitated based on the decision she had taken and, by implication, “refusing to participate in the creation of a safe working environment”.

“I can only conclude that the applicant’s dismissal was fair,” he said.

Labour consultant Tony Tealey said the case was important as it gave direction on how the dismissal of employees could be treated for failure to comply with mandatory vaccination.

“It is a well-written award and it is clear the employer implemented a thorough workplace assessment of Covid-19 risks and consulted widely with employees and trade unions before implementing the mandatory vaccination policy," he said.

The employer had allowed for a process where employees could apply to be exempted from the policy and justify why they should not be obliged to vaccinate.

“This employee did not apply to be exempted. She said it was her constitutional right to not be vaccinated,” Tealey said.

The CCMA award confirmed what his consultancy believed in regarding mandatory vaccination.

“Proper procedures were followed in the case."

ENSafrica director and head of employment Brian Patterson said the award correctly classified the dismissal as incapacity.

“It’s important as it upholds the right of the employer to require vaccination.”

It was important to note that not all cases will result in the same outcome.

Patterson said Mulderij could take the matter on review at the labour court.

“I wouldn’t hold my breath. The commissioner did a reasonably good job.”

Whether an employee was dismissed or not depended on whether the employer had justified the need for a mandatory vaccination and had done a thorough risk assessment.

He cautioned that dismissal must be a last resort.

Jayson Kent, employment law specialist and senior associate at ENSafrica, said it was important to keep in mind that each dispute of this nature would be fact-specific.

“This award should not be taken to mean that every dismissal of an unvaccinated employee will be fair, and whether it is found to be fair will depend on the facts of each case.

“The fairness of the dismissal in each case will depend on factors such as the employer’s risk assessment and vaccination policy, whether the employer is able to justify requiring its employees to be vaccinated, the type of work done by the employee, and, importantly, their reasons for refusing to be vaccinated,” Kent said.

 “This is a new and still largely untested area of our employment law and employers and employees alike would do well to take proper legal advice.”

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