2022-02-02

CCMA’s second anti-vaxxer ruling – this time is deals with suspension

The Occupational Health and Safety Act imposes a statutory duty on employers to take reasonable and practical measures to ensure a healthy and safe workplace.

It also requires every employee must cooperate with an employer to obey health and safety rules.

Suspending an employee for refusing to be vaccinated was fair and in line with the Occupational Health and Safety Act, the CCMA ruled .  The Act compelled employers to provide safe workplaces, and the requirement to vaccinate was in the interests of the health and safety of all employees.

Kok, a security officer at Ndaka Security Services, which provides security for Sasol, was suspended after he refused to be vaccinated on religious grounds, and that the mandatory vaccination contravened his rights to freedom and security, and was an unfair labour practise.
The had been instructed to return to work only after he had been vaccinated, or when he submitted his weekly test result, at his own expense.

The employer had undertaken Covid risk assessments during which Kok had been identified as an employee who needed to be vaccinated, as required by the COVID Directives. He shared an office with 10 people and worked in close contact with others.

Kok had previously contracted Covid, and contact tracing revealed that it was highly probable that several colleagues had been infected by him. The entire office had to be closed and employees had to self-isolate.

Every employee in the company had been assessed. The use of space in offices had been a crucial factor in their approach to Kok.

Kok was one of 5 unvaccinated employees:
- two were at home under the “no work, no pay principle”,
- one had been accommodated in an isolated office, and
- another was submitting weekly test results. 

It was not possible to allow Kok to work from home or in an isolated office because his job required him to deal with guards, the client and the public.

The company was under pressure from Sasol to achieve a 100% vaccination rate as Sasol was a primary client.

Kok’s argument was:
- his suspension was unfair because there was no legislation in place that compelled anyone to be vaccinated.
- He was a devout Christian.
- He had already recovered from Covid. (Contact tracing at the time revealed that it was highly probable that several colleagues had been infected by him. The entire office had to be closed and employees had to self-isolate.)
- He initially took medication, but he claimed that he only recovered when he started to rely on his body’s natural immunity and his faith.
- The vaccination, he said, was still in the experimental stage and would not prevent the spread of the virus, nor was it a cure.

The commissioner stated that conflicting constitutional rights, coupled with moral and ethical opinions was the centre of the mandatory vaccinations debate, and added that “It appears that important institutions, such as the South African Human Rights Commission did an about-turn when they recently announced that compulsory vaccinations might be lawful under certain circumstances. It appears that Nedlac holds the same view.” He said that President Ramaphosa had made reference to occupational health and safety laws and a safe working environment, and it was announced that Cabinet was investigating the possibility of a mandatory vaccine.

The commissioner said the vaccination had shown a demonstrable success in limiting severe illness and transmission, and Kok had not been able to present any evidence to the contrary and that the chances of adverse effects from the vaccination were extremely small.
He added that “The company and Sasol do not require vaccination to protect only him…the aim is to ensure a safe working environment for everyone.

On the subject of Kok’s religious objection, the commissioner found it “baseless and without any support, theological or scientific.

The commissioner determined:
- The employer had complied with the minister’s directives on mandatory vaccinations.
- Every employee in the company had been assessed.
- The use of space in offices had been a crucial factor in their approach to Kok.
- The company said it was not possible to allow Kok to work from home or in an isolated office because he had had to deal with guards, the client and the public.
- The company was under pressure from Sasol to achieve a 100% vaccination rate as Sasol was a primary client.
- The employer had taken into account its general duties under the Occupational Health and Safety Act which imposes a statutory duty on employers to take reasonable and practical measures to ensure a healthy and safe workplace.
- The Act also states that every employee at work must cooperate with an employer to obey health and safety rules.
- The requirement to vaccinate is nothing less than a ‘reasonable and practical step’ that every employer is required and compelled to take,” he said.
- The vaccination had shown a demonstrable success in limiting severe illness and transmission, and Kok had not been able to present any evidence to the contrary.
- The chances of adverse effects from the vaccination were extremely small.

THIS IS NOT A RULING ABOUT THE DISMISSAL OF AN UNVACCINATED EMPLOYEE: IT RELATES TO THE SUSPENSION OF SUCH AND EMPLOYEE

While a CCMA award like this one and the previous ruling regarding the dismissal of an unvaccinated employee should not be read as an indication of how courts may resolve constitutional challenges to the validity of specific vaccine mandates in future, the CCMA decision should worry unvaccinated employees who might have been made to believe that they could never lawfully be fired or suspended for refusing to get vaccinated.

Please don’t start suspension or disciplinary procedures without speaking to your Brentwood consultant.

Mark - 03:52 @ common, Industrial Relations, Human Resources, B-BBEE | Add a comment

 
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