Labour court sides with employee dismissed for refusing Covid vaccine

She had been with the company for 22 years and was 18 months away from compulsory retirement when dismissed without severance pay.

The Labour Court in Cape Town has ruled that a medical equipment supplier’s dismissal of an employee – without severance pay – for operational requirements after she refused to have a Covid-19 vaccination in line with the company’s mandatory policy was substantially unfair.

Acting Judge Maria Mokhoaetsi reviewed and set aside a Commission for Conciliation, Mediation and Arbitration (CCMA) award and ordered Baroque Medical (Pty) Ltd to pay the former employee compensation equal to 12 month’s remuneration calculated at the employee’s rate of remuneration on the date of her dismissal.

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Read: Dismissal of employee who refused to get vaccinated was fair, rules CCMA

The employee had worked for Baroque Medical for 22 years as an invoicing clerk and was 18 months away from her compulsory retirement at the time of her dismissal.

Baroque Medical supplies medical devices to various disciplines in the industry and was classified as an essential service during the Covid-19 pandemic.

CCMA ruling

CCMA Commissioner Piet Van Staden concluded on 9 May 2022 that Baroque Medical’s termination of the employee’s services based on operational requirements was substantively and procedurally fair.

Van Staden further concluded that the employee’s decision not to adhere to Baroque Medical’s mandatory vaccination policy was unreasonable, and she was not entitled to any severance pay.

Following her dismissal, the employee applied on 4 October 2024 to the labour court to review Van Staden’s decision and substitute it with an order that her retrenchment was substantively unfair and that severance pay was due and payable to her.

What the regulations say

Acting Judge Mokhoaetsi said the principal issue Van Staden had to determine was whether the employee was fairly retrenched and whether the employee was entitled to severance pay.

“The challenge in relation to the substantive fairness of the employee’s dismissal related to whether Baroque Medical considered alternatives to retrenchments,” she said.

Mokhoaetsi said the Minister of Employment and Labour issued Consolidated Directions on Occupational Health and Safety Measures in certain workplaces in June 2021 and the guidelines in Annexure C.

Read: Can you be fairly dismissed for not following Covid protocols in the workplace?

She said the directions were issued in terms of a regulation made under the Disaster Management Act to address, prevent and combat the spread of Covid-19 in certain workplaces in South Africa.

The provisions of Section 5 of Annexure C to the direction provided, among other things, that: “If an employee refuses to be vaccinated on any Constitutional or medical ground, the [employer] should:

• Counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, worker representative or trade union official;
• Refer for further medical evaluation should there be a medical contraindication for vaccination; and
• If necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.”

Mokhoaetsi also referred to Clause 5(c) of Annexure C, which provided a definition of “reasonable accommodation”.

This clause, among other things, said: “For the purposes of these guidelines, reasonable accommodation means any accommodation or adjustment to a job or the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment …”

Company did not take necessary steps to avoid dismissal

Mokhoaetsi also highlighted that the provisions of Section 189 of the Labour Relations Act (LRA) also place an obligation on the employer to engage in meaningful consultation and to make an attempt to reach a consensus on appropriate measures to avoid dismissals.

She added that Section 189(3) of the LRA requires that the notice issued by the employer should invite the other consulting party to consult with it and disclose in writing all relevant information, including but not limited to the alternatives the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives.

Mokhoaetsi said it is common cause that Baroque Medical implemented a mandatory vaccination policy that required all employees to be vaccinated. The employee refused to be vaccinated and noted her objections in writing.

Listen/read: Mandatory vaccinations in the workplace: What now?

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She said the directions read with Annexure C set out the relevant steps that an employer is required to take in instances where an employee refuses to get vaccinated.

CCMA decision at odds with the legislation

Mokhoaetsi said there was no evidence placed before the CCMA’s Van Staden that Baroque Medical implemented the directions and Annexure C as required.

She said the evidence that was placed before Van Staden indicates that Baroque Medical did not leave any room for engagement and consultation in respect of reasonable accommodation and/or alternative employment.

Mokhoaetsi said the evidence further indicates that the policy was not negotiable, which is contrary to what is required in terms of the LRA and the directions.

She added that Baroque Medical placed no evidence before Van Staden that indicates that it considered how the employee could reasonably be accommodated or provided with alternative employment during the consultation process.

The evidence placed before Van Staden was that the employee’s position had not become redundant and that she would have been entitled to all the benefits that she had at the time of her employment, she said.

Mokhoaetsi said the only condition that was an impediment to her continued employment was the vaccination requirement.

“That in itself, for the purposes of Section 189(3) of the LRA, does not qualify as an alternative before proposing dismissal.

“Nor does it qualify as alternative employment which the employee unreasonably refused as contemplated in Section 41(4) Basic Conditions of Employment Act,” she said.

Dismissal ‘substantially unfair’

Mokhoaetsi said Van Staden’s finding regarding alternative employment also fails to take into account what the directions and Annexure C require in relation to alternative employment.

“The Commissioner’s [Van Staden’s] finding that the vaccination requirement is an alternative before proposing a dismissal does not accord with what the Directions require.

“The Commissioner has thus failed to consider the provisions of the Directions and Annexure C.

“I am of the view that the conclusion is wholly unjustified and that the Commissioner’s construction leads to results that completely undermine the purpose of Section 189(2) and (3) of the LRA as well as the Directions.

“I therefore find that … [Van Staden’s] decision is not one that a reasonable decision maker could make.

“I further find that the dismissal of the employee was substantially unfair,” she said.

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