In a recent article we looked at your right as employee to say ‘NO’ once your employer implemented a Mandatory Vaccination Policy. The reality is that both you and your employer have rights in this regard. Your employer have the right, in terms of the new ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ (Consolidated Direction), gazetted on 11 June 2021, to implement a Mandatory Vaccination Policy (MV Policy). You, as employee, have the right to refuse to be vaccinated.
Bear in mind that no right is absolute!
Having regard to the Constitution of the Republic of South Africa (Constitution), the fundamental rights afforded to all people in South Africa are subject to limitation in terms of section 36 of the Constitution. This is a very important clause limiting fundamental rights only when ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – the nature of the right; the importance and the purpose of the limitation; the nature and extent of the limitation.’
The MV Policy and Risk Assessments
Once your employer decides to make vaccinations mandatory, the idea is not to force all employees to be vaccinated, but to do a risk assessment to identify employees who will be at a greater risk for severe illness or death when they contract COVID-19 based on the category of employment, type of work they are engaged in, age and health/comorbidities.
Your employer must, based on the above assessment, establish which category of employees must be vaccinated, taking into account your vulnerability as a result of your co-morbidities (if any), or the risk involved in your type of work as far as possible exposure/transmission is concerned. Your employer must further consider and bear in mind:
Very important again are your constitutional rights to, for instance, bodily integrity, religious freedoms and your beliefs.
Change to Conditions of Employment in Consultation
Seen in isolation you might view a mandatory vaccination, to which you do not necessarily agree to, as a unilateral change in your terms and conditions of employment. Yes, this is definitely a change in your employment conditions and as a result your employer must consult with you, with your union and any health and safety committee established in terms of the Occupational Health and Safety Act 85 of 1993.
Consultation, in essence, is a joint consensus seeking process, with the emphasis on ‘seeking’. Should there be no consensus, the MV Policy must still endure scrutiny if there is a dispute after the fact. In seeking consensus your rights on the one hand must be considered at the hand of the limitation in section 36 of the Constitution namely, ‘human dignity, equality and freedom, taking into account all relevant factors, including – the nature of the right; the importance and the purpose of the limitation; the nature and extent of the limitation.’
What if I refuse to be vaccinated?
The Consolidated Directive gives you the right to refuse to be vaccinated based on a medical or constitutional ground as mentioned above. Once you refuse, your employer must do one of the following:
Important to note is that should you refuse to be vaccinated without a reasonable and valid reason and you cannot be accommodated operationally in any other position, work from home, or have your workstation adjusted or relocated, you might face dismissal. Bear in mind that your employer’s consideration and implementation of a MV Policy is (or should be) founded in the operational requirements and survival of the business.
The Code of Good Practice, dealing with Dismissals, is clear that dismissal must be reserved as a last resort. As per Professor Hugo Pienaar, Director – Cliffe Dekker Hofmeyr, the ultimate process or label under which a possible dismissal will take place, is ‘Operational Incapacity’.
Refusal and Constructive Dismissal
Finding yourselves in circumstances that are so intolerable that you just cannot stay in employment with that Manager or Owner, might be scrutinised and found to be constructive dismissal. The Labour Court confirmed in Smithkline Beecham (Pty) Ltd v CCMA and Others 2000 21 ILJ 988 (LC), the test to establish if your employer’s conduct was so intolerable that you could not continue your employment must be objective.
The possibility, and in certain scenarios the reality, of being compelled to vaccinate cannot by default be an intolerable relationship scenario. There are measures in place to consult, to evaluate, room for further evaluations and accommodations. To merely resign because you have to vaccinate due to your age; health; position in terms of exposure/transmission, will not result in a positive resolve in a dispute.
Exclusion from the Workplace and Different Treatment
The Combined Directive recommends that when you are identified as ‘risk’ in terms of exposure/transmission due to your position or the type of work that you do, your employer must see whether you can be accommodated. The accommodation might include amendments to your specific role with the employer or adjusting your work environment. This might ultimately result in being moved into a separate office, separation from your colleagues, working from home or being required to wear a N95 mask while you are at the workplace.
Being treated differently on an arbitrary ground such as race, gender, sex, pregnancy, ethnic or social origin, to name a few, might be discrimination and it might be fair or unfair. Different treatment is never by default unfair! Only when the different treatment is purely based on one of the factors mentioned above, including age, the treatment might be classified as unfair discrimination. When the MV Policy requires you to be vaccinated based on your age, the requirement can be justified in light of medical and scientific data and history. It is different treatment based on a justifiable reason and requirement, which is fair.
Refusing to be vaccinated, after being identified in terms of your employer’ risk assessment and the MV Policy, might result in dismissal. Do not make decisions prior talking to us, MISA will be your voice.
MISA is only a phone call or an e-mail away!
Kindly utilise the following e-mail addresses and links for assistance during this time:
Legal/Labour-related enquiries Legal@ms.org.za
Legal Reception 011 476 3920
MISA Benefit claim-related enquiries Claims@misa.org.za
Any other enquiries Info@ms.org.za
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