The CCMA’s latest ruling in favour of a Sasol-hired security firm that suspended an employee who refused to take the Covid-19 vaccine noted that the decision had not been taken on a whim and that it had been necessary to avert a business disaster.
Employment lawyer and senior associate at Herbert Smith Freehills, Jacqui Reed, said that it was clear from the evidence presented in the arbitration award that the employer had ensured that it had conducted the entire exercise in “a procedurally fair manner”.
She said the employer had ensured that all employees had been given all the necessary opportunities to express their views and make an informed decision about whether to vaccinate or not.
Gideon Kok, who was employed as a safety practitioner in August 2019, was suspended from duty on November 1, 2021 following his refusal to vaccinate.
His employer is a private security company that had entered into an agreement with Sasol Limited, which required a 100% vaccination rate for all employees, contractors and suppliers working at its workplace.
“The employer conducted three risk assessments during 2020 and 2021 in accordance with the directives.
A plan was then developed and introduced and the leave policy amended to cater for the pandemic. Trade unions were engaged and an agreement was reached,” Reed said.
“The employer identified that Mr Kok was an employee who was required to be vaccinated because he shared an office with 10 employees; he worked in close contact with other employees; and contact tracing following a positive Covid test result from Mr Kok revealed that he may have infected several colleagues, which required the business to close and all employees to isolate,” Reed said.
The employer had also found that while it was possible to accommodate other employees, it was not able to accommodate Kok because his duties were such that he could not work from home or in isolation.
However, Kok had refused the vaccine, arguing that there was no legislation in place that compelled any employee to be vaccinated, and that section 12 of the Constitution protected everyone's right to freedom and security. He also argued that compelling employees to vaccinate was contrary to the Constitution, the National Health Act, and the Consolidated Directives issued by the minister of employment and labour.
He also told the CCMA that he was recovering from Covid-19, he was a devout Christian, that security personnel were not essential services, and that there was no commercial rationale for vaccination.
The employer presented Kok with an alternative to vaccination, a weekly Covid-19 negative test result at his own cost.
However, Kok declined this alternative.
Ruling in favour of the employer, the CCMA said in its findings that the suspension decision had not been taken on a whim and due process had been followed.
It found that section 12 of the Constitution was capable of limitation and there had been several cases where the public interest outweighed the right to bodily and psychological integrity of individuals in certain instances.
The requirement to vaccinate was a "reasonably practical step" in ensuring employees' safety as envisaged by the Occupational Health and Safety Act.
The CCMA also found that there was a clear commercial rationale requiring vaccination as the closure of the offices due to an outbreak was disastrous and the employer's largest client required 100% vaccination.
Reed said the case findings provided employers with insight when dealing with the matter of employees’ rights.
“The commissioner's thorough analysis of whether the right to bodily integrity can be limited by the implementation of a mandatory vaccination in the workplace is a useful tool for employers when assessing whether the limitation of an employee's rights are reasonable and justifiable in an open and democratic society,” Reed said.
