In an arbitration award issued on Friday, 21 January 2022, the Commission for Conciliation, Mediation and Arbitration (CCMA) found that an employer who dismissed an employee for incapacity for refusing to be vaccinated in line with its vaccination policy had acted fairly.

This is the first arbitration award to be issued by the CCMA on the contentious issue, following decisions by many employers to implement mandatory vaccination policies at their workplaces. In terms of the current Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, issued by the Minister of Employment and Labour (OHS Direction), employers are permitted to introduce vaccination policies in certain circumstances, following a risk assessment and in consultation with representative trade union/s and the employer’s health and safety committee/representative.

In the matter of Mulderij v Goldrush Group, Goldrush Group introduced a Mandatory Vaccination Policy (Policy) as contemplated by the OHS Direction. The company appointed a committee, consisting of the Group HR Manager, Operations Manager and Health and Safety Manager, which was tasked with identifying all the risks employees were exposed to and the manner in which these could be mitigated. 

Following this risk assessment, the company’s executive committee decided that the Policy was necessary to protect employees and create a safe working environment. Before implementing the Policy, Goldrush Group held consultations with various unions and all its employees. 

Specialists were invited to attend the consultations to explain the benefits of vaccinating and to answer any questions or concerns raised by employees. This consultation process took place over a three-month period.

In line with the OHS Direction, the Policy provided for exemptions in certain circumstances, including based on objections on Constitutional grounds. Applications for exemption were considered by the committee. Ms Mulderij, who was the Business Related and Training Officer, applied for exemption, citing various reasons and relying on her right, in terms of section 12(2) of the Constitution, to bodily and psychological integrity, which she explained includes the right to make decisions about her health, medical interventions and treatment, including the right to choose to either accept or reject the vaccine.  

On this basis, Ms Mulderij requested the company to exempt her from the vaccine mandate and accommodate her in an alternative position. 

Having identified Ms Mulderij as a high-risk individual who interacts with colleagues daily whilst on duty in confined, uncontrollable spaces, the committee declined her application. Ms Mulderij was subsequently required to attend an enquiry. At the enquiry, the presiding officer concluded that Ms Mulderij was permanently incapacitated based on her decision never to be vaccinated. Ms Mulderij was accordingly dismissed. 

The arbitrator held that incapacity is a recognised ground for dismissal under the Labour Relations Act, 1995, and that by refusing to be vaccinated, Ms Mulderij was unable to perform the job for which she was engaged and accordingly, permanently incapacitated. 

In his reasoning, the arbitrator found that the Policy, from its drafting up to its implementation, followed all the crucial steps. In considering whether the dismissal was fair, the arbitrator was also influenced by the following statement made by Judge Sutherland, Deputy Judge President of the Gauteng Division of the High Court (which the employer considered in making its decision to decline the employee’s exemption application):  

‘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.’

While this decision suggests that a dismissal for incapacity may be fair in circumstances where an employee objects to vaccination on Constitutional grounds and cannot be reasonably accommodated, employers should bear in mind that incapacity may not be the appropriate ground for dismissal in all circumstances. 

Each matter should be assessed based on the particular facts and employers are encouraged to seek legal advice before dismissing an employee for refusing to be vaccinated as required by their vaccination policies.  The decision also highlights the importance of complying with the procedural requirements set out in the OHS Direction prior to implementing a vaccination policy.

Written by Chloë Loubser and Alexia Kaplan from Bowmans