A lot of attention has been paid in the media recently to the position adopted by trade union federation COSATU in relation to employers who have adopted a mandatory vaccination policy. In particular COSATU has painted Standard Bank's dismissal of approximately forty employees who had been dismissed on the basis of their refusal, in accordance with Standard Bank's mandatory vaccination policy as victimization and has demanded that Standard Bank reinstate dismissed employees. Standard Bank has recently withdrawn its mandatory vaccination policy

COSATU position is premised on its stance that the national state of disaster is no longer in place. In addition the South African Society of Bank Officials (SASBO) has adopted the position that it is better to encourage vaccinations as opposed to imposing them.  COSATU and SASBO also appear to have been encouraged by a recent CCMA ruling which found that the dismissal of an employee for failure to comply with the employer's mandatory vaccination policy was unfair. This CCMA award also determined that a mandatory vaccination policy was unconstitutional. The CCMA case in question is Baroque Medical v Tshatshu, a June 2022 award by the CCMA which deviated from all previous CCMA awards. 

Arguably this award overstepped the boundaries of the jurisdiction of the CCMA, which in the case of determining whether an employee's dismissal is fair (amongst some of its other functions, but none of which are to interpret Constitutional rights) must solely concern itself with whether the employer had a fair reason to dismiss the employee, and whether it followed a fair procedure in doing so.  In Tshatshu, the CCMA commissioner held that only government has the right to formulate a vaccination policy, and not an employer. The requirement of the employer to vaccinate being held to be unconstitutional, the dismissal of the employee was accordingly found to be unfair. However, this award is problematic for a number of reasons, not least of which is that it deviates from all previous CCMA awards on the topic, but fundamentally errs by purporting to give the CCMA commissioner the power to make a constitutional ruling. This is a function reserved, properly, for the Constitutional Court itself. As such, any reliance by COSATU and SASBO on this ruling would be dangerous ground.

In addition, it must always be born in mind by employers that on 24 June 2022, the Minister of Labour and Employment  published the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, Government Notice No. 46596 (new Code), which replaced the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, Government Notice No. 46043, published on 15 March 2022.  Both such codes, however, entitle an employer to implement a mandatary vaccination policy after conducting a risk assessment in respect of its particular workplace and workforce profile.  

As such, the current legislative framework still entitles employers to conduct this assessment and in fact, if there are sufficient health and safety factors pointing towards the prevalence of Covid-19 being a risk to health and safety in the workplace, for reasonable safety measures - which may include the mandatory vaccination of employees - to be put in place.

Employers should take comfort that if they have followed the Code (whether the old or new code, or any previous legislation under the National State of Disaster) and conducted a risk assessment which lead to the conclusion that the implementation of a mandatory vaccination policy was or remains a reasonable safety measure, any dismissal of employees for failure to comply has generally been accepted by the CCMA as fair, and the recent case is an anomaly and whose findings on unconstitutionality are not binding.  For so long as Covid-19 remains a hazardous biological agent, as recognised by the new Code, mandatory vaccination policies may be viewed as a reasonable measure to ensure the health and safety of employees.  Each case, as always, must be assessed on its own merits.

Written by Bradley Workman- Davies, Director and Labour Law specialist at Werksmans Attorneys