On 25 January 2022, the CCMA issued its second decision relating to mandatory vaccination policies in the workplace.
It is clear from the evidence presented and recorded in the arbitration award that the employer ensured that it conducted the entire exercise in a procedurally fair manner and ensured that all employees, including Mr Kok, were given all the necessary opportunities both to express their views and make an informed decision about whether to vaccinate or not.
The commissioner’s thorough analysis of whether the right to bodily integrity can be limited by the implementation of a mandatory vaccination in the workplace is a useful tool for employers when assessing whether the limitation of an employee’s rights are reasonable and justifiable in an open and democratic society.
This is undoubtedly just one of many referrals to the CCMA who will be required to grapple with the issue of mandatory vaccination policies in the workplace.
The facts in brief were:
- Mr Gideon Kok, who was employed as a Safety Practitioner in August 2019, was suspended from duty on 1 November 2021 following his refusal to vaccinate.
- The employer is a private security company. It entered into an agreement with Sasol Limited, which required a 100% vaccination rate for all employees, contractors and suppliers working at its workplace.
- The employer conducted 3 risk assessments during 2020 and 2021 in accordance with the Directives.
- A plan was then developed and introduced and the leave policy amended to cater for the pandemic.
- Trade unions were engaged and an agreement was reached.
- The employer identified that Mr Kok was an employee who was required to be vaccinated because:
- he shared an office with 10 employees;
- he worked in close contact with other employees;
- contact tracing following a positive COVID test result from Mr Kok revealed that he may have infected several colleagues which required the business to close and all employees to isolate; and
- whilst it was possible to accommodate other employees, it was not able to accommodate Mr Kok as his duties are such that he cannot work from home or in isolation.
Mr Kok’s reasons for not vaccinating included:
- there is no legislation in place that compelled any employee to be vaccinated;
- an argument that compelling employees to vaccinate is contrary to the Constitution, the National Health Act and the Consolidated Directives issued by the Minister of Employment and Labour;
- that section 12 of the Constitution protects everyone’s right to freedom and security;
- he was recovering from COVID-19;
- he is a devout Christian;
- security personnel are not essential services; and
- there is no commercial rationale for vaccination.
Mr Kok was presented with an alternative to vaccination – a weekly COVID-19 negative test result at his own cost. Mr Kok declined this alternative.
The Commissioner found the following:
- the decision of the employer to suspend the employee was not taken on a whim and due process was followed;
- section 12 of the Constitution is capable of limitation (several cases where the public interest outweighed the right to bodily and psychological integrity of individuals in certain instances was referred to);
- the requirement to vaccinate is “reasonably practical step” in ensuring employees’ safety as envisaged by the Occupational Health and Safety Act;
- there was a clear commercial rationale from requiring vaccination as the closure of the offices due to an outbreak was disastrous and the employer’s largest client required 100% vaccination.
Jacqui Reed, Employment lawyer and Senior Associate at Herbert Smith Freehills: