CCMA AWARD: DISMISSAL FOR REFUSING TO GET VACCINATED IS FAIR

 

Sharusha Moodley 

Can an employer dismiss an employee for refusing to get vaccinated? 

The CCMA, on 21 January 2022, published the first award relating to the fairness of dismissal on grounds of refusing to get vaccinated, in the matter between Theresa Mulderij and Goldrush Group. 

The brief facts of the matter were that following the introduction of the Employer's Mandatory Workplace Vaccination Policy (MWVP), the employee elected not to comply and have herself vaccinated. Consequently, she attended an incapacity enquiry on 28 October 2021. The presiding officer concluded that the employee was permanently incapacitated due to her decision not to get vaccinated. Moreover, it meant, by implication, her refusal to participate in the promotion of a safe working environment. The presiding officer further concluded that the employee's incapacity was permanent as she had no intention of ever being vaccinated. Subsequently, the presiding officer concluded that it would be fair for the employer to terminate the employee's employment. 

The employee then referred a dispute to the CCMA, challenging the substantive fairness of her dismissal. 

The Commissioner noted that the employee who had applied for an exemption in terms of the employer's MWVP had placed reliance on section 12(2) of the Constitution. Section 12(2) provides that every person has the right to bodily and psychological integrity. The employer's Exemption Committee considered and declined her application on the basis that the employee was a high-risk individual who interacted with her colleagues daily whilst on duty in a confined and uncontrollable space, placing those colleagues at risk of possible infection. The employee's appeal had further failed. 

The Commissioner considered both parties versions and concluded that the employee was permanently incapacitated based on her decision not to get vaccinated and, by implication, refusing to create a safe working environment. The Commissioner then concluded that the employee's dismissal was substantively fair. 

This is the first award from the CCMA on a very controversial topic. Time will tell if the  Labour Court or a higher court may be called upon to review the award.