SOUTH AFRICA: CCMA FINDS THAT DENYING AN EMPLOYEE ACCESS TO THE WORKPLACE FOR REFUSING TO VACCINATE CONSTITUTES A FAIR SUSPENSION
In a recent arbitration award, dated 21 January 2022, the CCMA was required to determine whether an employer who denied an employee access to the workplace because of the employee’s refusal to be vaccinated amounts to an unfair labour practice in terms of section 186(2) of the Labour Relations Act.
In the case of Kok vs Ndaka Security and Services, Kok referred an unfair labour practice dispute alleging that his employer had suspended him unfairly and that such suspension amounts to an unfair labour practice. Kok was instructed to only return to work once he had been vaccinated against COVID-19; alternatively, he should submit a weekly COVID-19 test result.
This instruction came on the back of the employer’s primary client, Sasol Ltd, requiring a 100% vaccination rate on its premises. Ndaka Security and Services runs its operations from the Sasol Ltd site. Accordingly, to remain on site, its employees have to be vaccinated. Ndaka Security therefore took a decision to achieve a 100% vaccination rate, amended its leave policy, and has been in consultation with the relevant union.
Kok’s access card was blocked when he was no longer willing to submit weekly COVID-19 test results due to the cost of doing so. He further indicated that he was not willing to be vaccinated. In support of his stance not to be vaccinated, Kok relied on his constitutional rights to freedom and security under section 12 of the Constitution. Further, Kok stated that he is a Christian and had recovered from COVID-19 in the past when he stopped taking medication and instead relied on his faith and his body’s natural immunity.
The employer argued that Kok works in the front line as an essential services employee and has close contact with other employees (he shares an office with approximately 10 other employees) and members of the public. As such, Kok has been identified as an individual who is required to be vaccinated in terms of the current Consolidated Directive on Occupational Health and Safety Measures in Certain Workplaces (OHS Directive).
Other alternatives were considered. However, due to the nature of his job as a safety practitioner, it is not possible for Kok to work from home or an isolated office. He has to be physically involved with other guards, the client and the public.
Although the employer argued that Kok had not been suspended, the commissioner found that the employer’s conduct amounted to a suspension and that due process was followed. Further, the commissioner found that the suspension was for a fair reason.
In reaching his conclusion, the commissioner had regard to various factors and made the following key findings:
- that public interest outweighs the right to bodily and psychological integrity of individuals in certain instances;
- that vaccination has shown demonstrable success in limiting severe illness and transmission;
- that the aim of vaccination is to ensure a safe working environment for everyone and protect lives and livelihoods;
- that Kok works in an open office which is shared with colleagues;
- that Kok is required to visit all sites and interact with personnel;
- that alternatives were considered but are not possible;
- that the employer had complied with the requirements of the OHS Directive; and
- that the requirement to vaccinate is a reasonable practical step that every employer is required and compelled to take in terms of the Occupational Health and Safety Act.
Further, Kok had failed to prove that it is a requirement of the Christian belief for a person not to be subjected to vaccination.
If Kok is unhappy with the award, his recourse will be to lodge an application to the Labour Court for the Court to review it and set it aside.
This case emphasises the need for employers to comply with each step that is set out in the OHS Directive. Employers are also advised against taking a blanket approach to dealing with cases where employees refuse to comply with mandatory vaccination policies. This is because there may be cases where employees have legitimate reasons for refusing to comply with vaccination policies and there may be available alternatives to accommodate such employees. Employers are encouraged to seek legal advice before taking any disciplinary action against employees for their refusal to comply with mandatory vaccination policies.