23 Mar 2022

Mandatory Vaccination? Part 2

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

In another matter the employer required its employees to be vaccinated because its business model was aimed at providing support to overseas customers. This required employees to travel internationally at short notice.  Those travelling to these countries were required to produce vaccination certificates to gain entry.

Certain employees refused to be vaccinated as they were not convinced that there was no risk associated with vaccination and were unable to travel to the overseas countries. This alone rendered them incapable of performing their duties and would arguably have justified their dismissal on grounds of incapacity.

In this case, the employer attempted to accommodate each employee by adjusting their duties so that they could be unutilized locally only and offered employment at a slightly reduced remuneration.  The alternative employment was also refused.

The employees brought an application in the Labour Court arguing that the obligation to be vaccinated constituted a unilateral change to terms and conditions of employment.  The application was dismissed.  The applicants were unable to point to a term and condition of employment which had been unilaterally amended by the need to be vaccinated to perform overseas work.  In fact, the employment contracts contained a term in which the employees agreed to travel internationally.  Refusing to travel placed the individual employees in breach of their contractual obligations. Given this, the court did not have to deal with the reasonableness of the alternative offer made to the employees.

Employers should consider their terms and conditions of employment and these may afford the reason for vaccination giving the employer the right to implement a mandatory vaccination mandate.

Both cases turned on the facts of the matter and employers are urged to consider their own circumstances carefully before rolling out a mandatory vaccination programme.