News of this week’s landmark CCMA ruling that the dismissal of an employee for refusing to be vaccinated against Covid-19 was fair has upped the stakes on workplace vaccination policies. The commission ruled that she could be dismissed because she had ‘refused to participate in the creation of a safe working environment’.
As legal writer Tania Broughton reports on the GroundUp site, the ruling, by Gauteng commissioner Lungile Matshaka, is the first to come to light on the issue of workplace mandatory vaccine policies. Goldrush Group business and training officer Theresa Mulderij, was appealing against her dismissal for ‘incapacity’. She wanted to be either reinstated or fully compensated.
At the hearing, company representatives explained the steps leading up to the adoption of its mandatory workplace vaccination policy. They said consultations had been held with unions and employees over a three-month period. Staff had been given an overview of the benefits of vaccination. Specialists, including a doctor, traditional healer, virologist and a human rights commissioner had been made available to answer questions. The policy included a provision for exemption. Mulderij applied for an exemption but was turned down. According to Matshaka’s ruling, she had first attempted to get a medical exemption, but no doctor had been willing to assist her. She then relied on her constitutional right to bodily integrity. This application was turned down by the exemption committee. ‘The committee identified her as a high-risk individual who interacts with colleagues daily whilst on duty in confined, uncontrollable spaces. This, according to the committee, put her at risk and exposes other colleagues to risk,’ the commissionersaid.
Matshaka said he had listened carefully to what Mulderij had said at the CCMA hearing: that she had a constitutional right to bodily integrity; that she felt extreme social pressure and emotional discomfort about deciding between her livelihood and accepting the vaccine under current conditions; and that she did not trust the vaccine and had a personal fear as to what it might do to her.
She had said since the beginning of lockdown, she had strictly followed Covid protocols, both general protocols and those introduced by the company. To her knowledge, she had not yet been infected or infected anyone else, notes the GroundUp report. ‘She is aware that it has been confirmed by the World Health Organisation that the vaccine does not stop the spread or contraction of the virus, but only serves to minimise the severity of symptoms. She does not believe that this vaccine is for the greater good or wellbeing of people but only for the good of the individual themselves,’ the commissioner said. He The Commissioner that said the mandatory workplace vaccination policy, from its drafting up to its implementation, had followed all the crucial steps. He could only conclude that Mulderij was ‘permanently incapacitated’ on the basis of her decision not to get vaccinated and her refusal to participate in the creation of a safe working environment.
Source: LegaBrief