Arbitration body slams medical group for firing employee who refused vaccination

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A CCMA commissioner has ruled that mandatory vaccinations are unconstitutional.
A CCMA commissioner has ruled that mandatory vaccinations are unconstitutional.
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  • The CCMA has ruled that a Johannesburg-headquartered medical group was wrong to fire an employee for refusing to get vaccinated.
  • The commission found that mandatory vaccinations were "unconstitutional" and awarded the employee maximum compensation. 
  • But lawyers say the ruling contradicts past rulings by the same body, which found that employers could dismiss staff for not getting vaccinated. 

SA's main dispute resolution body has found that a medical company was wrong to fire an employee for refusing to be vaccinated against Covid-19, a finding that directly contradicts previous rulings by the same body. 

The Commission for Conciliation, Mediation and Arbitration (CCMA) ruled last month that Baroque Medical acted in a "substantively unfair" and "unconstitutional" manner when it fired employee Kgomotso Tshatshu for not getting vaccinated. 

But as Lauren Salt of lawfirm ENS Africa notes, past CCMA rulings on vaccine mandates have come to the opposite conclusion. Earlier this year, for example, the CCMA found that the same company – Baroque – was within its rights to dismiss another employee for refusing to get vaccinated. 

The end result is that the CMMA now has two diametrically opposed rulings about the same company and the same vaccination policy. 

"While this award will surely attract attention, it is not a foregone conclusion that it will be followed by other Commissioners, particularly in the light of the fact there are a number of awards confirming an employer's ability to impose mandatory vaccination in the workplace," noted Salt. 

'Unconstitutional' 

Baroque, which supplies medical equipment to hospitals, last year instituted a companywide policy of mandatory vaccination which did not make provisions for exceptions. 

Tshatshu, who worked as an inventory controller, argued that she should be exempt from the inflexible policy as she had suffered a negative reaction to a flu vaccine a decade ago. She provided her employers with two doctor's notes. 

But Baroque said the "vague" notes were insufficient and proceeded to retrench her without severance pay. 

Commissioner Richard Byrne ruled that Baroque was in the wrong. He awarded Tshatshu, who did not want to be reinstated, just under under R300 000 in compensation.

"The rule requiring vaccinations was unreasonable," he wrote. "It follows that the dismissal of the applicant was substantively unfair."

In his ruling, Byrne noted that no general laws had been passed requiring all citizens to be vaccinated. 

"Our Judiciary, right from the Constitutional Court down to Labour Court, and also including the CCMA and Bargaining Councils, have not instituted any rules amongst themselves requiring compulsory vaccinations. No state department or organ of state has, to my knowledge, implemented anything of the sort."

Byrne said the requirement that employees get vaccinated to keep their jobs would amount to unfair discrimination and be unreasonable.

He also found that Baroque had not provided any evidence of the effectiveness of its strict mandatory vaccination rule. Nor did they introduce a copy of the risk assessment that supposedly underpinned their vaccination policy. 

"All they have is a nicely-worded policy document," he said. 

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