17 Mar 2022

Mandatory Vaccination? Part 1

by Michael Maeso, Partner, Durban,
Practice Area(s): Employment |

In a recent decision of Solidarity brought as an urgent application to the Labour Court arguing that the employers conduct of introducing a mandatory vaccination policy constituted a breach of the employee’s terms and conditions of employment,.

The employee was employed in the Internal Sales Division when the employer informed staff that the only scientifically proven way to prevent lockdowns, was to be vaccinated. Not being vaccinated put co-workers and jobs at risk.

The employee refused to be vaccinated and eventually the employee was sent home on a no-work, no-pay basis.  The reason for doing so was that it was alleged that the employee was creating a risk by not being vaccinated and that her continued refusal was in defiance of a reasonable instruction. Furthermore, the employer had provided an alternate solution to being vaccinated in the form of requiring the employee to provide a weekly negative Covid-19 test. 

The employee produced a letter from her doctor indicating that she had a medical condition preventing vaccination, but no cardiologist report was attached.  When considering the terms of the employee’s contract of employment, the applicant was unable to point to any specific term that was breached with the introduction of the site exclusion.

The court accepted that employers are obliged to take steps that are reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees. The courts considered the import of the Direction that came into effect on the 11th June 2021  issued under Section 27(2) of the Disaster Management Act.  Clause 3 of Annexure C of the Direction requires employers to conduct a risk assessment to identify those employees, who by virtue of the risk of transmission through their work or their risk for severe Covid 19 disease or death due to their age or comorbidities, must be vaccinated.

The court accepted that for employees who did not fall in the high-risk category described above, had the alternative to vaccination by  providing a Covid 19 test every 7 days.  As a result, it could not be argued that employees had to be vaccinated to work. In any event the applicant could not point to any term of the contract that had been breached and the application was dismissed.

The case is not  one  dealing with the breach of an employee’s constitutional rights to resist vaccination.  It is not  one  alleging the non-compliance of the Employment Equity Act by the employer nor is it one  dealing with the right of an employer to implement a mandatory vaccination policy.  Instead, the application was argued as a breach of the employee’s contract of employment and it is this and this alone that was before court. The judgement suggests that the weekly Covid-19 test result is one option to deal with employees who are unwilling or unable to be vaccinated.

Employees objecting to vaccination on constitutional or medical grounds alone has yet to be determined by the courts. The current science behind the virus and the efficacy of the vaccine will be instructive in any result.