On 21 January 2022 the CCMA delivered its findings in the unfair dismissal dispute of Mulderij v The Goldrush Group (case number: GAJB-24054-21), where it confirmed that the dismissal of an employee pursuant to a refusal to adhere to an employer’s mandatory workplace vaccination policy (“MWVP”) may be considered substantively fair.
It is the first major finding by a South African legal forum dealing directly with the issue of workplace MWVP’s and an employee’s failure and/or refusal to ensure that he/she complies with its prescripts.
Before delving into the minutiae of the finding, it is important to note that an award such as the one in Mulderij, is not necessarily indicative of the manner in which our higher courts may elect to deal with the constitutional issues which are inherent in a dispute of this nature. This is but the first chapter in what will no doubt become a comprehensive jurisprudence on the issue of MWVP’s and their interplay with constitutionally enshrined rights.
The facts of the CCMA dispute
Ms Theresa Mulderij (“Ms Mulderij”) was employed by The Gold Rush Group as a Business Related and Training Officer as of 9 March 2018. Following the onset of the COVID-19 pandemic, the development of COIVD-19 vaccines and the obvious risks posed by the virus in the workplace, the Gold Rush Group elected to implement a MWVP requiring its employees to be fully vaccinated.
Ms Mulderij failed to comply with the MWVP as she refused to be vaccinated against COVID-19. Pursuant to her refusal, Ms Mulderij applied for an exemption in accordance with the employer’s MWVP on the grounds that section 12(2) of the Constitution guarantees an individual’s right to bodily integrity. The exemption application was considered and declined by the employer’s Exemption Committee. The Committee rejected Ms Mulderij’s application by reason of the employer having identified Ms Mulderij as a “high risk individual” who interacted with third parties and colleagues daily “whilst on duty in confined, uncontrollable spaces”. The Committee concluded that Ms Mulderij thus posed a risk, not only to herself, but also to others, in that they were placed at increased risk of contracting the disease. Following the Committee’s rejection, Ms Mulderij brought internal appeal proceedings which too were rejected.
It is worth noting that Ms Mulderij had, prior to seeking an exemption on constitutional grounds, sought an exemption on medical grounds which was forsaken once medical professionals consulted by Ms Mulderij refused to support her claim.
Ultimately, the employer instituted disciplinary proceedings against Ms Mulderij on the grounds of incapacity which culminated in her dismissal. The chairperson of Ms Mulderij’s internal disciplinary hearing imposed a sanction of dismissal on two main grounds:
(i) that as a result of her refusal to be vaccinated, Ms Mulderij was rendered permanently incapacitated; and
(ii) that by implication, such incapacity caused Ms Mulderij to contribute to the creation of an unsafe working environment.
Following her dismissal, Ms Mulderij referred an unfair dismissal dispute to the CCMA.
The CCMA findings
The Commissioner confirmed that the Labour Relations Act, 66 of 1995, recognises incapacity as a legitimate ground for dismissal and that incapacity is generally accepted to consist of two main sub-categories: (i) poor work performance; and (ii) ill-health or injury. Regarding incapacity relating to ill-health or injury, the employer bears the onus of establishing the nature of the employee’s condition, the likely prognosis, and the extent to which the employee is incapable of rendering the services which he/she has been employed to perform. In this regard, the Commissioner stated the following:
“The ultimate decision to dismiss is not a medical question; it is a decision to be taken in light of the available medical evidence and opinion. An employer may not compel an employee to undergo a medical examination. If the employee refuses to do so, the employer must decide on the facts available to it, although an arbitrator is entitled to draw a negative inference from the employee’s refusal”. [emphasis added]
This extract is particularly relevant as Ms Mulderij advanced various justifications for her refusal to be vaccinated which were not supported, even tangentially, by available medical evidence. Her decision to refuse to be vaccinated was seemingly founded on widely available but misleading and/or patently false claims about the safety and efficacy of vaccines.
Whilst the Commissioner’s findings did not directly address the issue of available medical evidence and the efficacy of vaccines, it can be presumed that Ms Mulderij’s submissions on this score were rejected because the overwhelming medical evidence and opinion available at the time directly contradicted her assertions. Available medical evidence and opinion had consistently found that while vaccines did not completely mitigate the risk of transmission or contraction of COVID-19, they did greatly reduce the likelihood of this occurring.
The Commissioner found that the employer’s MWVP, from its drafting to its implementation, followed “all the crucial steps” (which we assume refers to its compliance with the relevant regulations providing for the adoption of MWVP’s by employers) and duly made provision for employees to apply for exemptions where persuasive grounds existed. The evidence led during the CCMA proceedings further demonstrated that the employer had also, prior to implementing the MWVP, consulted with various trade unions and its entire workforce for a period of approximately three months. The employer further provided these groups with a copy of the intended policy which was explained to, and read by, them.
Moreover, the current COVID-19 regulations require an employer to reasonably accommodate employees who refuse the vaccine. In this matter, however, the employer led evidence showing that Ms Mulderij could not be so accommodated. The Commissioner agreed that the nature of the employee’s duties required substantial engagement with site-owners and other employees and accepted the employer’s evidence that it was unable to accommodate Ms Mulderij in an alternative position.
In concluding her finding that Ms Mulderij’s dismissal was substantively fair, the Commissioner referred to an excerpt from a memorandum authored by the Deputy Judge President of the Gauteng Division of the High Court, Judge Roland Sutherland, on the issue of mandatory vaccinations in the workplace. The memorandum was circulated by Judge Sutherland to his colleagues on the bench. The excerpt reads as follows:
“There has been, as yet only mild protest that this [adopting a no-vaccination-no-entry-policy] violates freedom of choice … in my view this is the wrong question. 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.” [emphasis added]
Thus, it was held that while employees are constitutionally apprised of the right to freedom of choice, this right may be limited where the exercise of the right could potentially expose others to risk.
Whether the CCMA ruling in this matter will withstand further judicial scrutiny remains to be seen, but it does provide an early glimpse into the position the judiciary may take with regard to the issue of wilful non-compliance with employer MWVP’s.
It is also unclear whether the CCMA would have issued a similar award if the employee relied on more sustainable and persuasive medical evidence. Naturally, the CCMA finding does not clarify the position of employees whose religious or other beliefs prevent them from receiving the vaccine.
For further information and/or guidance regarding the preparation and implementation of mandatory workplace vaccination policies, please do not hesitate to contact our offices and we will gladly assist.