Law firm ENS Africa has said that while the ruling will be a relief for many employers, the CCMA’s award may not be the last word on the matter. “The Labour Court or even the Constitutional Court may ultimately be called upon to determine this issue in due course,” stated specialist employment lawyers Irvin Lawrence and Ehigie Marilyn Okojie. “It should also be remembered that the fairness of the employer’s actions will be assessed in light of the specific circumstances of each case.” In this case, Goldrush undertook a Covid–19 risk assessment of its workplace and decided to introduce a mandatory vaccination policy.

Goldrush allowed employees the opportunity to apply for exemption from the compulsory inoculation scheme. The employee in question, a training officer, was refused an exemption and her appeal application was declined. When she still refused to take the vaccine, she was summoned for an incapacity hearing and dismissed. At the hearing, the presiding officer concluded that the employee was permanently incapacitated based on her refusal to get vaccinated. She then approached the CCMA and asked for reinstatement or maximum compensation. The commissioner ruled in favour of Goldrush, saying they were satisfied that with Goldrush’s approach and agreed that the employee was permanently incapacitated for refusing to take the vaccine.

The employee made the following arguments:

• She had a right to bodily integrity.
• She felt under extreme social pressure and emotional discomfort being asked to choose between vaccination and her livelihood.
• This is compounded because she had to waive her rights of recourse against pharmaceutical companies and her employer.
• She had strictly followed Covid–19 protocols
• The World Health Organization confirmed that the vaccine does not stop the spread or contraction of the coronavirus, but serves to minimise the severity of Covid–19 symptoms.
• All she wanted was an exemption from mandatory vaccination and to be offered an alternative position.

During the proceedings, it emerged that the employee abandoned her attempt at obtaining medical exemption after her doctors refused to provide a medical certificate in support of her application. Goldrush contended that, given the nature of the employee’s duties, there was no other position where she could be placed. The commissioner found that Goldrush had followed all the crucial steps set out in its vaccination policy, including considering her exemption claim. The employee had been identified as a high-risk individual who was required to interact with colleagues daily while on duty in confined, uncontrollable spaces.

The commissioner concluded that she was permanently incapacitated on the basis of her decision not to get vaccinated and by implication, her refusal to participate in the creation of a safe working environment. “In the light of this recent decision by the CCMA, it seems that, provided that an employer follows proper steps from the risk assessment process to the implementation of the mandatory vaccine policy, it could successfully dismiss employees who refuse vaccination on based on incapacity,” ENS Africa’s Lawrence and Okojie wrote. “It is of paramount importance that employers keep in mind the Consolidated Direction, which provides that every employer must undertake a risk assessment before determining whether it intends to make vaccinations mandatory,” they warned. “If so, the employer must carefully identify only those employees who by, virtue of risk must be vaccinated.” ENS Africa also noted that the Consolidated Direction requires an employer to take into account the rights of its employees to bodily integrity, and freedom of religion, belief and opinion as set out in the Constitution in developing a vaccination plan or policy.