The recent of case of TSHATSHU VS BAROUQUE MEDICAL (PTY) LTD. heard in the CCMA and the recent award issued on 22 June 2022 has highlighted mandatory vaccination policies and whether they are still useful. In this case, Barouque implemented a mandatory vaccination policy after having conducted a risk assessment. Tshatshu was one of four employees who refused to comply with the mandatory vaccination policy. The employee refused to be vaccinated due to her fear of the vaccination as she had a negative response to a flu vaccine 10 years earlier. Barouque requested that the employee provide medical proof of the allegation, which she did. However, Barouque did not accept the medical proof submitted by Tshatshu and, in light of the refusal to be vaccinated, implemented a retrenchment of the employee without severance pay.
The CCMA firstly interrogated the reasonableness of the implementation of a mandatory vaccination policy having regard to the various principles set out in the Constitution. Once it was determined that the implementation of the mandatory vaccination policy was unreasonable, the CCMA then had to determine the fairness of the dismissal. In relation to the retrenchment, the CCMA found that as Barouque had already decided beforehand that they would dismiss every employee who did not vaccinate, the retrenchment consultations were largely lip service and further that their vaccination policy made it impossible to properly follow a retrenchment process. The Commissioner ultimately found, in this particular case, that the rule regarding the vaccinations was unreasonable and that Tshatshu’s dismissal was substantively unfair. Barouque was ordered to pay Tshatshu the equivalent of twelve months salary.
This case is noteworthy as it contradicts an earlier case against the same employer where the employee was also retrenched for refusing to be vaccinated but, in that case, that employee’s dismissal was found to be fair.
The case of Tshatshu appears to the first of its type and perhaps is a symptom of where we currently find ourselves with the ever-changing circumstances that surround the Covid-19 pandemic. This award and the current Covid-19 medical evidence, however, brings into question whether the implementation of vaccination mandates would still be appropriate.
It will be interesting to hear from the Labour Court once they render a judgment on this issue. Until then, employers must be circumspect when dealing with these matters and each case must be judged on its own particular set of circumstances.
The Code of Practice: Managing Exposure to SARS- Cov-2 in the Workplace which was implemented on 24 June 2022, seeks to provide guidance to employers and employees in managing exposure to Covid-19. The Code still makes provision for an employer to implement mandatory vaccination policies provided that certain procedures are complied with. Also, in terms of the Occupational Health and Safety Act there still remains an obligation on the employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its workers. Furthermore, what we do know from the recent medical evidence is that Covid-19 used to be far more deadly that is appears to be now.
Accordingly, it certainly appears that the circumstances where mandatory vaccinations are necessary or would be appropriate are steadily reducing.
It therefore may be increasingly difficult to justify the dismissal of an employee for refusing to be vaccinated and Covid-19 risk management plans should be updated and adapted to the changing circumstances applicable from time to time.