SOUTH AFRICA: THE DEVELOPING CASE LAW ON VACCINATIONS

Many lawyers, employers and employees have been waiting in anticipation for precedent on workplace vaccinations to be developed.

While the issue is far from settled, there have been a number of interesting cases decided in the last four months that provide some insight into how our courts and tribunals are approaching employers’ vaccination requirements. 

A high-level summary of some of the most noteworthy cases that have come before the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour Court (LC) and the High Court (HC) in South Africa over the past few months follows below. 

• 21 January 2022, Theresa Mulderij v Goldrush Group (CCMA) – Unfair dismissal claim: Theresa Mulderij (Ms M) was dismissed for incapacity after Goldrush declined her COVID-19 vaccine exemption application. The CCMA found the dismissal substantively fair, reasoning that Ms M was permanently incapacitated on the basis of her decision not to vaccinate.  Ms M was required to engage with external clients and internal colleagues by virtue of her position and could not be accommodated elsewhere in the business. [See our full summary newsflash here.]
• 25 January 2022, Gideon J Kok v Ndaka Security and Services (CCMA) – Unfair labour practice claim: Gideon Kok (Mr Kok) was suspended after he refused to be vaccinated. He was instructed only to return to work once he had been vaccinated against COVID-19; alternatively, he could submit a weekly COVID-19 test result. The CCMA dismissed Mr Kok’s claim and found his suspension fair. In his reasoning, the Commissioner found, inter alia, that the employer had complied with the requirements of the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (OHS Direction); and that the requirement to vaccinate is a reasonably practical step that every employer is required and compelled to take in terms of the Occupational Health and Safety Act, 1993. [See our full summary newsflash here.]
• 2 February 2022, Solidarity obo Members & 2 Others v SEESA (Pty) Ltd (LC) – Urgent application: Solidarity approached the Labour Court on an urgent basis on behalf of two of its members for an order declaring SEESA’s COVID-19 Admission to Premises Policy and any other related policies unlawful. Solidarity’s urgent application was struck off the roll for lack of urgency. [See our full summary newsflash here.]
• 11 February 2022, Free State for Choice (FS4C) v University of the Free State (UFS) (HC) – Urgent application: FS4C applied for urgent interim relief to suspend the operation of the UFS’s COVID-19 Regulations and Required Vaccination Policy, pending a review application in which it sought to review and set aside the policy. The urgent application was struck off the roll for lack of urgency. The review application was withdrawn.
• 23 February 2022, De Klerk v Chairman of the Board of Curro Holdings Ltd and Another (HC) – Urgent application: the employee, a grade 1 teacher at Curro Academy Sandown in Cape Town applied for an urgent interdict to bar Curro from applying its COVID-19 vaccination policy, pending a review application in which she sought to have the policy declared invalid, unlawful and unconstitutional. The High Court struck the urgent application from the roll for lack of urgency.
• 1 March 2022, Makhanda Against Mandates (MAM) v Rhodes University (HC) – Urgent application: MAM sought an interim interdict against the implementation of the vaccine mandate at Rhodes University. The matter was struck off the roll for lack of urgency.
• 7 March 2022, Dale Dreyden v Duncan Korabie Attorneys (CCMA) – Unfair dismissal claim: Dale Dreyden was dismissed for refusing to be vaccinated in line with the employer’s vaccination requirement, which was imposed based on its risk assessment. The dismissal was found to be substantively fair, but procedurally unfair, due to the employer’s failure to follow a proper pre-dismissal procedure. The CCMA found the employer’s vaccine requirement to be sound, considering, inter alia, that the employer, Mr Korabie, suffers from comorbidities.  
• 14 March 2022, Solidarity obo Members & 1 Other v Ernest Lowe, A Division of Hudago Trading (Pty) Ltd (LC) – Urgent application: Solidarity sought an order declaring the employer’s admission policy (which permitted employees to enter the premises either if they were fully vaccinated or could produce a negative COVID-19 test) unlawful and in breach of the second applicant’s employment contract. The application was dismissed. In reaching its decision, the Court emphasised that the admission policy did not amount to a ‘mandatory vaccination policy’ and that the matter did not relate to the fairness or reasonableness of the admission policy or the second applicant’s Constitutional rights. The applicants failed to point to any specific term of the contract that was breached because of the adoption of the admission policy. [See our full summary newsflash here.]
• 5 April 2022, Zaphia September v Inyosi Empowerment (CCMA) – Unfair dismissal: Zaphia September was dismissed for failing to vaccinate during her probation period, on the basis that vaccination had become a new competency and the employee was thus not competent for the position. The CCMA found the dismissal unfair. Whilst the employer had complied with the requirements of the OHS Direction and the employer’s right to implement the policy was not disputed, it did not afford the employee the same opportunity as its employees not on probation to comply with the requirement. There was no complaint about the employee’s work performance or suitability, yet her employment was terminated by relying on the probation period having come to an end. By the time the arbitration took place, the employer’s vaccination policy was not yet in force. Dismissal was accordingly premature.

There are sure to be many more cases making their way through our courts and tribunals in the time to come. Employers would do well to keep up to date with these decisions as the law in this area is developed.

* This article was co-authored by Mbali Mnyandu