The new case concerns the South African who was fired without severance pay for refusing vaccination

A recent case from the Conciliation, Mediation and Arbitration Commission (CCMA) determined what happens when an employee is fired based on his refusal to be vaccinated under a vaccination policy and whether he is subject to severance pay relationship.

The applicant and the employee refused to comply with a mandatory vaccination policy against Covid-19 implemented by her employer, a medical supply company.

The applicant refused to comply for “medical, personal and religious reasons” but did not prove her medical reasons at all stages of the trial, Cliffe Dekker Hofmeyr said.

Judgment of the Court

Questions asked before the CCMA included:

  • Can an employer fire an employee who fails to comply with a mandatory vaccination schedule?
  • Is the employee entitled to severance pay if he is fired by an employer for refusing to be vaccinated?

After evaluating the evidence and arguments presented by both parties, the commissioner concluded that the defendant had filed a lawsuit for the downsizing process that had been undertaken, Cliffe Dekker Hofmeyr said.

The Commissioner also found that the applicant’s objections on personal and religious grounds were unfounded.

Consequently, the applicant was dismissed on the basis of operational needs. After evaluating the evidence and arguments presented by both parties, the commissioner concluded that the defendant had alleged the confinement process he had undertaken.

“The rationale for the decision to impose a mandatory vaccination policy is clear: in providing medical products to a range of medical disciplines, the respondent engages with hospitals and doctors,” said the commissioner.

“Consequently, safeguard its employees and ensure that the employer’s operations are not seriously affected by absences due to personnel who have contracted the Covid-19 virus and that the entities and persons who have had contact with the staff of the employer are adequately protected, undertook a risk assessment which made it clear that a mandatory vaccination policy had to be imposed, “added the commissioner.

Cliffe Dekker Hofmeyr observed that the risk assessment conducted by the company, as well as the policy itself, was never contested by the applicant.

As the employer’s evidence in this regard remained unchallenged, it was accepted by the commissioner, who said he was satisfied that the defendant had demonstrated that implementation of the policy was a justified operational requirement.

The procedural fairness of the applicants’ dismissal was not contested, the only appeal concerned the substantial fairness of his dismissal, where the defendant did not adequately consider alternatives to downsizing.

The medical provider added that there was no reasonable alternative due to the applicant’s duties necessitating her presence in the office, Cliffe Dekker Hofmeyr said.

The commissioner added that the defendant had not committed any wrongdoing in his decision to suspend the applicants’ services due to operational needs.

TFR

The last question the Commissioner considered was whether the plaintiff was entitled to severance pay. In this regard, section 41 (2), read in conjunction with section 41 (4), of the Basic Conditions of Employment Act 75 of 1997 (BCEA) was considered, said Cliffe Dekker Hofmeyr.

The ECCEA provides that an employee who unreasonably refuses to accept an alternative employer’s offer of such employment with that employer or any other employer is not entitled to severance pay under Section 41. (2), he added.

In determining the matter, the Commissioner referred to A.Strapak Manufacturing Holdings (Pty) Ltd t / a East Rand Plastics v Chemistry, Energy, Paper, Printing, Wood and Allied Workers’ Unionin which the court considered a previous examination of the scope of Article 41 (2) read in conjunction with Article 41 (4) of the ECBA.

“Zondo JP felt that there was no basis for an employee to obtain both severance pay and alternative employment. There was, however, one case where the employee would receive neither severance pay nor alternative employment, “the law firm said.

This would have occurred when the applicant herself was to blame for acting unreasonably by refusing the alternative job offer.

The commissioner then referred Freshmark (Pty) Ltd v CCMA and otherswhere the court found that an offer by an employer to an employee of his position under different terms constitutes an alternative job offer – it is the occupation that should be the alternative, not the position

The commissioner considered that the different condition was the obligation to vaccinate, which, given the defendant’s operations, has become an operational requirement. As a result, the applicant had the choice to vaccinate and keep her employment, said Cliffe Dekker Hofmeyr.

“However, she refused to vaccinate and her refusal to do so had no merit and was consequently unreasonable. The commissioner therefore felt that it would have been grossly unfair to expect the respondent to pay severance pay in these circumstances, “said Cliffe Dekker Hofmeyr.

  • Comment by Cliffe Dekker Hofmeyr

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