The law regarding automatically unfair dismissals is trite and has been tested by our courts on various occasions. Recently, however, in the case of Burton Maasdorp v University of Free State JS647/2022, the Labour Court handed down the first decision regarding an automatically unfair dismissal claim resulting from an employee’s refusal to adhere to a workplace Covid-19 vaccination policy.

At a glance

• In Burton Maasdorp v University of Free State JS647/2022, the Labour Court handed down the first decision regarding an automatically unfair dismissal claim resulting from an employee’s refusal to adhere to a workplace Covid-19 vaccination policy.
• The court held that there had been no unfair discrimination on an arbitrary ground. Accordingly, the court did not have jurisdiction to adjudicate the employee’s claim.
• To argue automatically unfair dismissal based on arbitrary discrimination, the discrimination must have no reasonable justification. In the case of Covid-19, however, there was a shared rationale amongst employers for the issuing of vaccination policies, supported by legislation and science.

The applicant in this case, Mr Maasdorp was employed by the University of the Free State. As part of its attempts to curb the spread of Covid-19, the university issued a vaccination policy in November 2021. This policy did not make vaccination an absolute requirement, but also allowed for employees to apply for an exemption from receiving the vaccine on either medical, religious, or other grounds. Absent a negative Covid-19 test not older than seven days or an exemption, employees were barred from accessing the workplace. Without yet deciding on fairness, the court accepted that this constituted discrimination in the sense that it differentiated between employees.

The university made it clear to Maasdorp that he would not be able to enter the workplace without meeting the above requirements. Despite the university bringing the policy to Maasdorp’s attention on various occasions, he remained adamant that he would not be vaccinated. Maasdorp further failed to apply for an exemption. Upon the university instructing all employees to attend the workplace physically, Maasdorp was refused entry multiple times for his failure to adhere to the policy. This conduct led to disciplinary action being taken against him, which culminated in his eventual dismissal on 5 April 2022.

Aggrieved by his dismissal, Maasdorp brought a claim to the Labour Court alleging that his dismissal was automatically unfair in that the reason for his dismissal was unfair discrimination based on an arbitrary ground.

As the court had accepted that the university’s policy resulted in discrimination, the issue before the court was whether the discrimination against Maasdorp was unfair on arbitrary grounds, therefore constituting an automatically unfair dismissal.

The court found that the vaccination policy was not arbitrary, because the policy was formulated based on the following:

• The general scientific consensus regarding the value of Covid-19 vaccinations.
• The university’s obligations under the Occupational Health and Safety Act 85 of 1993 (OHSA). Namely, section 8(1) of the OHSA which specifically stipulates that “every employer shall provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of his employees”.
• The Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces of 11 June 2021, which was a directive published in terms of the National Disaster Regulations. This directive allowed employers to require the vaccination of their employees, subject to certain requirements.

The court held that there had been no unfair discrimination on an arbitrary ground. Accordingly, the court did not have jurisdiction to adjudicate Maasdorp’s claim.

The impact of the Covid-19 pandemic on the workplace is undisputed. This case echoes the crystalized law on automatically unfair dismissals. To argue automatically unfair dismissal based on arbitrary discrimination, the discrimination or differentiation must have no reasonable justification. In the case of Covid-19, however, there was a shared rationale amongst employers for the issuing of vaccination policies, supported by legislation and science. This case, therefore, is a useful starting point for employers when faced with similar claims in the Covid-19 realm.

Written by Jean Ewang, Consultant and Thato Makoaba, Canditate Attorney at Cliffe Dekker Hofmeyr