Louis Case Reports

DISMISSED FOR REFUSING TO VACCINATE
Dreyden v Duncan Korabie Attorneys [2022] WECT13114-21 (CCMA)

Duncan Korabie Attorneys hired Mr Dreyden as a candidate attorney in 2018. The firm did work related to the Zondo Commission and had experienced cyber attacks as well as a physical break in, so due to their vulnerability to security breaches, staff could not work from home. Mr Korabie suffers from a serious medical condition and after the outbreak of Covid-19 was advised by his doctors to minimise his exposure to the virus as far as possible. The firm had an open plan layout and there was no scope for isolated work areas. The firm required all staff to be vaccinated and Mr Dreyden was dismissed when he refused. Two commissioners at the CCMA considered whether his dismissal was substantively and procedurally unfair (three had initially been assigned due to the novel nature of the disputes arising from mandatory vaccination in the workplace).

Commissioner Everett and Commissioner Warwick discuss the firm’s vaccination policy; the communications to the staff; Mr Dreyden’s contentions that there is no law requiring mandatory vaccination; and the reasons for his refusal to vaccinate. At para [75] the commissioners set out the key requirements for an employer when implementing a mandatory vaccination policy in the workplace. Each case must be decided on its own merits and at para [78] the factors that might be relevant are listed.

In the circumstances of this case, it is found that Mr Dreyden was incapable of performing his duties for the firm and as there was no alternative way to accommodate him, the dismissal was substantively fair. However, the firm fell short in procedural fairness and the level of consultation was not sufficient, Mr Dreyden being advised by Whatsapp message that his services were terminated. Compensation of one month’s pay plus four weeks’ notice is ordered.

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ADMISSION POLICY AND VACCINATION
Solidarity v Ernest Lowe (Hudaco Trading) [2022] J49-22 (LC)

Ms Van Rensburg was employed by Hudaco in the internal sales division. In December 2021 a letter was issued to employees about the risks of covid and contending that unvaccinated people put their families, friends, colleagues and the economy at risk. Staff were then notified that admission to the premises would only be granted to employees who had been fully vaccinated or to those who produce a negative Covid-19 test result within the prior seven days. Hudaco would not pay for the tests or allow paid working hours to be taken for testing. Ms Van Rensburg obtained a Covid-19 exemption form that said that vaccination for her should be avoided because of a medical condition, being cardiac arrhythmia. Despite correspondence between the union, Hudaco and their attorneys, Hudaco maintained its stance that the admission policy would remain in place and that the employee would not be granted an exemption. Solidarity approached the court to have the admission policy declared unlawful, as well as seeking related relief.

Makhura AJ discusses the applicant’s contentions that the admission policy constitutes a mandatory vaccination policy and that Hudaco had breached the employee’s contract of employment; the contention that Hudaco did not conduct a risk assessment; whether the matter was urgent; the Consolidated Direction on Occupational Health and Safety Measures; whether there was a breach or unilateral change to the contract of employment; whether there was a breach of the Direction and or the Occupational Health and Safety Act; and whether Hudaco adopted a mandatory vaccination policy. The court finds at para [69] that it is unable to find that the admission policy constitutes a mandatory vaccination policy and that the applicants have failed to make out a case that the admission policy is unlawful. Hudaco acted in accordance with the Act and the Direction in its duty to provide a safe working environment.The application is dismissed.

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MAINTENANCE AND CONTEMPT OF COURT
SJD v RKL [2022] ZAGPJHC 149

In early 2019 an order of divorce was granted with a settlement agreement. The children would reside with the mother and the father was to pay his 50% contribution toward maintenance for the minor children. The children are 6 and 8 years old and one of the children suffers from a muscular disease which is treated with medication, which costs are a recurring expense. The father honoured his obligations for 11 months, but was often late with payments or would fail to pay the amounts due. In the application before the court the mother claims the arrears and seeks an order for incarceration of the father for his failure to comply with the order of court and for costs on an attorney client scale.

Mahomed AJ discusses the contention that the father knew of the order and that be acted wilfully and mala fides; the correspondence between the parties’ attorneys; that the father has not paid maintenance for two years; that he only approached the court after the launch of these proceedings; the application for variation; the father’s version; the requirements for contempt of court; and that the father displayed a disregard for a court’s position and honour, as he continued to manipulate the system.

The court finds 31 days to be a fair period for the father to pay over the debt and 10 days a fair period for the term in imprisonment, as he does need to maintain contact with his children.

[50]  I am also cognisant of the impact of imprisonment on the person and the reputation of persons, in future job prospects. However, I cannot overlook his total disregard for the Honour of a court of law. The court’s dignity and respect are integral to the success of any legal system.

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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