Cape Town – The recent CCMA award against Baroque Medical on the issue of their workplace vaccine mandate was problematic for a number of reasons, including that it deviated from all previous CCMA awards on the topic and fundamentally erred by purporting to give the CCMA commissioner the power to make a constitutional ruling.
This is a function reserved for the Constitutional Court and as such, any reliance on this ruling would be “dangerous ground”, Director and Labour Law specialist at Werksmans Attorneys, Bradley Workman-Davies, said.
The CCMA recently found in favour of a Gauteng woman formerly employed as a senior inventory controller at Baroque Medical, who was retrenched a year ago for not taking the Covid-19 vaccine.
Senior Commissioner, Richard Byrne held that the dismissal was substantively unfair and awarded the employee the maximum compensation, a year’s pay amounting to R279 600.
“An employer has no right to formulate any Covid-19 Vaccination Mandate. lt is the prerogative of government. The rule regarding vaccinations was therefore unreasonable. It follows that the dismissal of the Applicant was substantively unfair,” said Byrne.
Workman-Davies said a lot of attention has been paid to the position adopted by Cosatu in relation to employers who have adopted a mandatory vaccination policy.
“In particular Cosatu has painted Standard Bank’s dismissal of approximately 40 employees who had been dismissed on the basis of their refusal, in accordance with Standard Bank’s mandatory vaccination policy as victimisation and has demanded that Standard Bank reinstate dismissed employees. Standard Bank has recently withdrawn its mandatory vaccination policy,” he said.
“Cosatu’s position is premised on its stance that the national state of disaster is no longer in place. The South African Society of Bank Officials (SASBO) has adopted the position that it is better to encourage vaccinations as opposed to imposing them. Cosatu and SASBO appear to have been encouraged by a CCMA ruling which found that the dismissal of an employee for failure to comply with the employer’s mandatory vaccination policy was unfair. This CCMA award also determined that a mandatory vaccination policy was unconstitutional.
“Arguably this award overstepped the boundaries of the jurisdiction of the CCMA, which in the case of determining whether an employee’s dismissal is fair (amongst some of its other functions, but none of which are to interpret Constitutional rights) must solely concern itself with whether the employer had a fair reason to dismiss the employee, and whether it followed a fair procedure in doing so.”
Workman-Davies said the award deviates from all previous CCMA awards on the topic, and fundamentally errs by purporting to give the CCMA commissioner the power to make a constitutional ruling.
“As such, any reliance... on this ruling would be dangerous ground,” he added.
On 24 June 2022, the Minister of Labour and Employment published the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, Government Notice No. 46596, which replaced the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, Government Notice No. 46043, published on 15 March 2022.
“Both such codes, however, entitle an employer to implement a mandatory vaccination policy after conducting a risk assessment in respect of its particular workplace and workforce profile.
“As such, the current legislative framework still entitles employers to conduct this assessment and in fact, if there are sufficient health and safety factors pointing towards the prevalence of Covid-19 being a risk to health and safety in the workplace, for reasonable safety measures – which may include the mandatory vaccination of employees – to be put in place,” Workman-Davies said.
Each case must be assessed on its own merits, he added.
Cape Times