Is mandatory workplace vaccination constitutional? Is it even a fair workplace practice? These are questions being asked in many jurisdictions as employers try to ensure safe work environments. The issue is also beginning to filter into the court system, as those who do not want to be vaccinated challenge employers who have made vaccination mandatory. In what seems to be the first such case to reach the Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa, the commissioner hearing the matter has decided that the company concerned did not act unfairly in dismissing an employee who refused to be vaccinated.
In this case, between dismissed employee Theresa Mulderij and the Goldrush Group for which she had previously worked, the question that had to be decided was whether the company’s dismissal decision was ‘substantively fair, based on incapacity’ since the employee had refused to be vaccinated.
Alternatively, if it was found that she was unfairly dismissed, should she be reinstated, or ‘fully compensated’?
Mulderij was hired by the company almost four years ago as a training officer.
When she refused to comply with the company’s mandatory vaccination policy, she was required to attend a virtual hearing in October 2021. During that inquiry, she was advised that she would have ample time to state her case and was entitled to a representative from within the company to help her. She was also informed that she could bring in witnesses if she wished.
The conclusion reached by the presiding officer at the in-house inquiry was that Mulderij was ‘permanently incapacitated’. This was based on her decision not to be vaccinated, a decision that she had explained was ‘permanent’.
The presiding officer also found that it would be fair if the company were to terminate the contract between itself and Mulderij, in other words, to dismiss her.
But was that indeed fair? Mulderij thought not, and so she took her dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), asking for reinstatement or ‘maximum compensation’.
At the CCMA, the commissioner heard from the company’s health and safety manager who explained that he had read a government gazette dealing with voluntary and mandatory vaccination options and had asked for the company to work out its own policy on the matter.
After going through a number of stages, the company opted for a mandatory vaccination policy. During consultations with unions and individual employees over three months, the rationale of the policy was explained, as well as how it would be implemented. Everyone was also told that an employee could apply for an exemption from the company’s policy. A number of specialists were also brought in as part of the consultations, including a traditional healer, a virologist and a human rights commissioner.
Throughout, the intention of the company in opting for the mandatory vaccine policy was to make sure its employees were ‘protected’, in the sense that they were working in a safe environment.
Another company witness explained that there was no other position where Mulderij could be employed if she were not vaccinated because she interacted every day with other people inside, in confined, uncontrollable spaces.
For her part, Mulderij based her position on her constitutional right to bodily integrity, including the right not to be subjected to medical or scientific experiments without consent.
She said she felt ‘extreme pressure’ and emotional ‘discomfort’ when she was forced to decide between her livelihood and having the vaccine. She was particularly concerned that she had no recourse against her employer, or the companies that made and supplied the vaccines, if she should have temporary or permanent bad side effects. She was greatly afraid about what the vaccine might do to her.
She stressed that she strictly followed the government’s Covid-19 protocols and that as far as she knew she had never herself been infected. She also knew that vaccines did not stop the spread of Covid-19 but minimised the severity of its symptoms. She said she had made a carefully thought-through and informed decision not to be vaccinated though she respected the decision of those who thought differently.
Mulderij hoped that the company would offer her an alternative position so that she could carry on working there, despite not being vaccinated.
The commissioner, Lungile Matshaka, said that someone was ‘incapacitated’ if they were unable to do the job for which they were engaged. In this case, Mulderij’s decision reflected that she was ‘permanently incapacitated’.
The company’s ‘exemption committee’ that looked at applications from those who did not want to be vaccinated, had found that Mulderij was a ‘high risk’ person in the sense that she interacted with colleagues every day while on duty, in confined spaces. Thus, she put herself and others at risk of possible infection by not being vaccinated.
She had used the company’s appeal system, but had been unsuccessful in her challenge and she was also unable to find a doctor who would provide a medical exemption.
The commissioner then also quoted a significant memo by the deputy judge president of the Gauteng division of the high court, Judge Roland Sutherland. Writing to his colleagues, the DJP said that asking whether a mandatory vaccination policy violated freedom of choice was not necessarily the ‘right question’.
Rather, he said, ‘the proper question is whether or not an individual is sufficiently civic-minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of the individual.’
The commissioner concluded that, after seriously considering all aspects of the question, including Judge Sutherland’s views, ‘in my own sense of fairness, I can only conclude that [Mulderij] is permanently incapacitated on the basis of her decision to not [get] vaccinated and [by] implication refusing to participate in the creation of a safe working environment.’
‘I can therefore only conclude that the applicant’s dismissal was substantively fair.’
Although that marks the end of the process at the CCMA, it is likely that Mulderij will easily find financial support if she wants to challenge the outcome at the labour court. Although it is far too early yet to tell for sure, this case could end up being the test case for which anti-vaxxers have been waiting.