ANALYSIS | Jacqui Reed: Mandatory vaccine polices in the workplace - avoiding litigation

Jacqui Reed examines a recent CCMA decision which found that an employer's mandatory vaccination policy and the rule emanating from that policy was unreasonable.

In a recent CCMA decision, a commissioner found that the employer's mandatory vaccination policy and the rule emanating from that policy was unreasonable. The commissioner also found that the employee's dismissal on the basis that she refused to comply with the mandatory vaccination policy was unfair. The employee was awarded compensation equivalent to 12 months' remuneration.

While this case is not precedent-setting because quasi-judicial tribunals cannot set precedent in our law, it does raise interesting questions about the manner in which parties lead evidence to a CCMA arbitration and the manner in which that evidence is considered and interpreted.

Importantly, this is the first CCMA decision and the first decision relating to mandatory vaccinations in the workplace which concludes that a mandatory vaccination policy is unreasonable and the dismissal emanating from that policy is both procedurally and substantively unfair.

The commissioner's award

The commissioner makes reference in his award to the fact that vaccination does not prevent transmission of the Covid-19 virus.

Evidence to this effect was never led by either of the parties and it is accordingly not clear on what basis the commissioner chose to include this reference in his award. This statement is not accurate because at the time that the policy was implemented by the employer in July 2021 (as opposed to when the dismissal was being considered by the commissioner, being June 2022), South Africa was experiencing the third wave of Covid-19 infections. At the time, being July 2021, South Africa reported approximately 16 000 new infections per day. At the time of writing this piece, South Africa reported on average 400 cases a day.

Scientists indicated that the primary variant responsible for the exponential increase in the rate of infections in July 2021 was the Delta variant. The death rate was also high as most South Africans had not yet received their first Covid-19 vaccination. Scientists were in agreement that the Delta variant was highly infectious and that vaccination was the most effective way to reduce transmission.

In addition, the employer in this case chose to consult with employees approximately one month after the Department of Employment and Labour had issued the Amended Consolidated Direction on Health and Safety in Certain Workplaces (Amended Direction) that provided for the implementation of a mandatory vaccination policy by South African employers as long as certain requirements were fulfilled. Therefore, both the commissioner's views relating to transmissibility and whether the employer was permitted to impose a mandatory vaccination policy are incorrect.

In making his determination, the commissioner assessed whether the rule relating to mandatory vaccinations in this particular workplace was reasonable. This was done in the context of determining whether or not the employee's dismissal for operational requirements was procedurally and substantively fair.

Valid concerns

This approach is unusual in circumstances where the alleged unfair dismissal relates to operational requirements and not misconduct. Where an employee is dismissed for operational requirements, a commissioner would ordinarily have conducted an analysis of the policy in light of the employer's business and the requirements of its clients to determine whether its operational requirements were such that the implementation and enforcement of a mandatory vaccination policy was a true operational requirement.

In the event that this analysis had been conducted, the commissioner would probably have reached the conclusion that the employer's operational requirements justified the implementation of the policy.

The reasons cited by the employer during the arbitration for implementing the policy included a loss of productivity and ensuring a healthy and safe working environment (both of which are supported by the science). This is a valid concern that many employers have previously expressed, given the transmissibility of the Delta variant among those who are not vaccinated (which was the vast majority of the South African population in June 2021 when the Delta variant was prevalent). It is not clear on what basis the commissioner does not believe this is a valid concern and, therefore, an operational requirement as well as an obligation in terms of OHSA.

The policy, as described in the commissioner's award, clearly provides for the possible termination of an employee's contract of employment for operational requirements in the event of a refusal to vaccinate by using the word "may". The commissioner's conclusion that the employer "decided beforehand that they would dismiss every employee who did not vaccinate" is not correct. The policy is not framed in a manner that can be interpreted as dismissal in the absence of any procedure being followed.

The commissioner also finds that the employer paid "lip-service" to the employee's attempts to provide valid medical grounds upon which to refuse to vaccinate and claimed that any valid medical ground produced would, in any event, have resulted in an operational requirements dismissal but with a severance payment accompanying that dismissal.

Medical grounds

While the evidence in relation to the medical ground is not entirely clear in the award, it is accepted that where an employee is not in a position to accept an alternative offer of employment in a typical retrenchment process (in this case it would be an inability to vaccinate on medical grounds) and non-acceptance of the alternative is reasonable, the employee is entitled to receive severance pay. It is only where the employee unreasonably refuses an alternative position that the employee is not entitled to receive severance pay. The commissioner's finding that the employer's evidence in this respect was "bizarre" is accordingly incorrect.

The commissioner also notes in his award that he "would hazard a guess at being less than 1%" in relation to how many South African organisations have implemented a mandatory vaccination policy which is not appropriate when analysing evidence at an arbitration particularly where no such evidence was led by either party.

Despite the multitude of reviewable points, some of which have been highlighted above, it appears from the award as if:

• the employer did not conduct a particularly extensive consultation process. Most consultation processes have ranged between three and four months prior to implementation of the policy; and
• the employer did not conduct a sufficiently comprehensive assessment in relation to the employee's objection on medical grounds.

While the Amended Direction provides for the employer to "consult" with employees without specifying a time period, it is preferable for an employer to engage with an employee at length in order to ensure that the reasons and justification for implementation of such a policy is clearly understood. The Amended Direction also provides that where the employee objects on medical grounds and, following counselling, maintains the objection, the employer is to refer the employee for "further medical evaluation". While this appears to have been done by the employer in this instance, it may have been prudent for the employer to have conducted a more extensive consultation process and to have assisted the employee with a "further medical evaluation" so that its evidence in this regard would have been more persuasive.

In circumstances where the subject of mandatory vaccination policies in the workplace appears to have largely become irrelevant, it is not evident whether this award, if upheld on review, would carry any significant weight for employers. However, in circumstances where this may be the first of future pandemics, employers should consider how and why such policies should be implemented in their organisations in future and should ensure that they devote sufficient time both to ensuring they are able to justify their decision as a reasonable one and to consulting with employees in an attempt to secure as much support as possible from them, thereby mitigating the risks associated with litigation.

First published on News24, ANALYSIS | Jacqui Reed: Mandatory vaccine polices in the workplace - avoiding litigation | News24

For more information, please contact Jacqui Reed or your usual Herbert Smith Freehills contact