Can an employee be fired for refusing to be vaccinated?

 

Countless South Africans are anxiously awaiting their chance to get vaccinated against the novel coronavirus (COVID-19). However, in many countries, some people have refused to be inoculated.

Our President made it clear that this is a voluntary vaccine.

While no firm regulations are in place around international and interstate travel, some countries may require travellers to have a Covid vaccination passport. In time, pubs and restaurants could also refuse entry to people who refuse to get vaccinated.

Can your current (or prospective) employer force you to be vaccinated as the government eases pandemic restrictions and we go back to work? Can a mandatory COVID-19 vaccination be required as a condition of employment? Can an employee be dismissed for refusing to be vaccinated?

The law is unclear.  Until our courts rule on a case-by-case basis, employers should be wary of making a jab compulsory and dismissing an employee who refuses the vaccination.

Our courts will balance employees' rights between our Constitution (that gives citizens the right to privacy or bodily integrity) and compliance with health and safety protocols. The applicable laws are the Disaster Management Act, the Occupational Health and Safety Act, the Mine Health and Safety Act, and other legislation pieces, including the Labour Relations Act (the LRA).

Section 187(1)(f) of the LRA makes a dismissal automatically unfair if an employer unfairly discriminates against an employee on grounds such as age, religion, conscience, and belief as well as "any other arbitrary ground". Time will tell if an employer can fairly dismiss an employee who refuses the vaccination on religious or similar grounds.

Employers should create a Covid vaccination policy that may be mandatory or flexible, depending on the workplace health risks.

The ultimate test will be if the mandatory vaccination policy was fair and reasonable in the circumstances of each case. If it was, an employee's refusal to be inoculated might be a ground for dismissal.

 

Can I refuse to go to work during the lockdown?

The Covid-19 pandemic has sown fear and confusion. People have lost their jobs and others are scared to go to work and be with co-workers.

Can an employee reasonably refuse to work in an office or workplace? In the recent CCMA case of Botha v TVR Distribution, the CCMA found that if an employer issues a lawful and reasonable instruction, even during a pandemic, the employee is obliged to obey it and could face dismissal for failure to comply.

The commissioner had to decide on the fairness of Botha’s dismissal on the grounds of gross insubordination and insolence after refusing to attend work during the Covid-19 lockdown.

Botha’s employer had the required CIPC certificate to allow it to operate as an essential service during the lockdown. The employer ordered Botha to go to work but he refused, because he had not been provided personal protective equipment, that he had not been given a permit, and that the level 5 lockdown regulations did not permit him to work and he refused to break the law.

After hearing the evidence, the commissioner found that the dismissal was substantively fair but procedurally unfair. The commissioner found that the company had complied with all the disaster management health and other regulations to protect Botha, but he simply had no intention to attend work.

Regarding the evidence, various authors, and the Labour Relations Act (especially Schedule 8 Code of Good Practice: Dismissal) the commissioner found that an employee’s lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority; that Botha’s refusal to report for duty amounted to a failure to obey a lawful and reasonable instruction, he was insolent and insubordinate in doing so, and that his dismissal was therefore substantively fair.

The commissioner further ruled that as that the chairperson at Botha’s disciplinary hearing seemed to have prejudged the case and failed to allow Botha to provide mitigating factors for his conduct, the dismissal was not procedurally fair. Accordingly, the employer was ordered to pay one month’s salary to Botha as compensation.

Can an employee resign with immediate effect in the face of misconduct allegations?

There have been conflicting decisions and uncertainty whether an Employer can still take disciplinary action against an Employee who resigned with immediate effect in the face of misconduct allegations.

In the matter of The Standard of Bank of South Africa Limited v Nombulelo Cynthia Chiloane, (LAC) (reportable case no: JA 85/18) the Labour Appeal Court found that an employee may not resign with immediate effect to end the employment relationship with his/her employer and so prevent an employer from proceeding with disciplinary action during the employee’s notice period (as regulated either by the contract of employment or the Basic Conditions of Employment Act [BCEA]).

In this case, Standard Bank gave its employee, Chiloane, notice to attend a disciplinary hearing, alleging that she cashed a cheque without following proper procedures, causing Standard Bank financial loss.  On the same day that the employee received the notice to attend the disciplinary hearing, she tendered a written letter of “resignation with immediate effect” to her superior. 

The bank told Chiloane that she was required to serve her four-week notice period as provided for in her contract of employment.  Through her attorney, the employee maintained that her letter of resignation ended the employment relationship with immediate effect and accordingly, Standard Bank was not entitled to proceed with the disciplinary hearing. Despite this, the disciplinary hearing continued in her absence and the presiding chairperson found the employee guilty of the misconduct and recommended a sanction of summary dismissal. Standard Bank accordingly dismissed the employee.

After having been informed of her dismissal, the employee instituted an urgent application in the Labour Court seeking an order that her dismissal was invalid.  The Labour Court held that resignation with immediate effect terminates the employment relationship immediately and an employer is not entitled to require an employee to serve his/her notice period.  Accordingly, the Labour Court declared the employee’s dismissal pursuant to the disciplinary hearing null and void.

On appeal, the Labour Appeal Court reiterated that employment relationships are governed by contracts and/or statutes. The court held inter alia, “In this matter, the employee’s narration that her resignation was with “immediate effect” was of no consequence because it did not comply with the contract which governed her relationship with her employer and the employer was thus correct to read into the resignation a four-week notice period within which period it was free to proceed with the disciplinary hearing.”

The Labour Appeal Court thus confirmed that where an employment contract provides for a particular notice period, an employee is obliged to give notice for the period provided in the contract.  The contract of employment, and reciprocal obligations contained in it, only terminate when the period specified expires.  In the absence of a contractual term, the parties are bound by the statutory notice provisions provided for in the BCEA.

  

Court finds that our laws fall short concerning Muslim marriages.

In the recent SCA case, where the President and Minister of Justice were the Appellants, regarding Muslim marriages, the court found that: 

1.      The Marriage Act and the Divorce Act are declared to be inconsistent with the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) as valid marriages (which have not been registered as civil marriages) as being valid for all purposes in South Africa, and to regulate the consequences of such recognition. 

2.      The Divorce Act is inconsistent with the Constitution insofar as it fails to: 

a.      provide for mechanisms to safeguard the welfare of minor or dependent children of Muslim marriages at the time of dissolution of the Muslim marriage in the same or similar manner as it provides mechanisms to safeguard the welfare of minor or dependent children of other marriages that are being dissolved. 

b.      provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. 

c.       make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages. 

3.      The declarations of constitutional invalidity are referred to the Constitutional Court for confirmation. 

4.      The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. 

5.      The declarations of invalidity are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament to remedy the foregoing defects by either amending existing legislation, or passing new legislation within 24 months, to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition. 

6.      Pending the coming into force of legislation or amendments to existing legislation, it is declared that a union, validly concluded as a marriage in terms of Sharia law and subsisting at the date of this order, or which has been terminated in terms of Sharia law, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this order, may be dissolved in accordance with the Divorce Act as follows: 

a.      all the provisions of the Divorce Act shall be applicable save that all Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary, and 

            b.      the provisions of s 7(3) of Divorce Act shall apply to such a union regardless of when it was                        concluded. 

The transfer of immovable property after a divorce

 

When does one become the owner of a fixed property in terms of a divorce settlement agreement?

For example, the settlement agreement may provide that within seven days of the grant of a decree of divorce Mr Jones shall cause his half share of 123 -1st Ave, Orange Grove to be transferred to Mrs Jones.

The date of acquisition of the half share would be the date of the court order and not the date of the agreement between the parties regarding the transfer of the half share. Upon the granting of the order, Mrs Jones only acquires a personal right to compel transfer to her of Mr Jones’ half share.  This right protects her interest in the property against any subsequent claims against Mr Jones’ creditors until it is formally transferred by way of deed of transfer or endorsement into her name.

Section 16 of the Deeds Registries Act sets out how real rights (ownership) of land are transferred:

“Save as otherwise provided in this Act or in any other law the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar, and other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by the registrar…” 

Ownership in land requires an act of registration in the Deeds Office. There are exceptions to this general rule:  the acquisition of ownership through succession, prescription or of an interest in land by virtue of a marriage in community of property (e.g. if the husband owned property and subsequently married in community of property, his wife automatically becomes co-owner of that property and no act of registration is required in terms of the Deeds Registries Act).

It is also possible to amend the divorce order or settlement agreement by executing an addendum to such agreement. The courts have previously ruled that the consent of the court is not a prerequisite to amend the stipulations of the divorce order regarding the redistribution of assets. (Ex parte Boshi and Other 1979 (1) SA 249 and Ex parte Herman 1954(2) 636 (O) and Chief Registrars Circular 21 of 1990. 

In a case where settlement / addendum in relation to property is only reached after the formal court proceedings are finalised, the date of acquisition will be the date that the subsequent settlement is reached, provided that any exemption of transfer duty will only be afforded where the settlement agreement, entered into ex post facto the divorce, has been made an order of court per a recent ruling by SARS.