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The first widely publicised case in South Africa on the dismissal of an employee for refusing to vaccinate, has evoked widespread reaction.

A summary of the facts: In Theresa Mulderij vs Goldrush Group, the respondent company introduced a mandatory vaccination policy after extensive consultation with employees. The Group Business-related and Training Officer refused to be vaccinated on the basis of her right to bodily integrity in terms of section 12(2) of the Constitution. She was concerned about the side-effects of vaccination. She also argued that the vaccine did not prevent persons from contracting or spreading the virus. She respected the decision of others to be vaccinated and expected the same in return.

After considering evidence and argument by both sides, the CCMA commissioner found that the employee was permanently incapacitated on the basis of her decision not to be vaccinated and thereby “refusing to participate in the creation of a safe working environment”. The commissioner found that the dismissal of the employee had been fair.

The commissioner appears to have been swayed by the company’s argument that the employee was a “high risk individual who interacts with colleagues daily whilst on duty in confined, uncontrollable spaces”.

The commissioner also seems to have been influenced by the views expressed by Judge Roland Sutherland, Deputy Judge President of the Gauteng Division of the High Court, who stated the following in a memo to colleagues towards the end of last year: “There has been, as yet, only mild protest that this [adopting a no-vaccination-no-entry policy] violates freedom of choice … in my view this is the wrong question. The proper question is whether or not an individual is sufficiently civic minded to appreciate that a duty of care is owed to colleagues and other with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of the individual.”

While this case gives one a sense of how the CCMA is likely to approach similar cases in future, it certainly does not give employers free reign to dismiss employees who refuse to be vaccinated. There are many factors to take into account and the situation could vary widely from case to case.

One must also remain mindful of continuous changes to the nature of Covid-19 an its variants, i.e. the apparent closing of the gap between the risk of contraction and transmission of the virus by those who are vaccinated versus those who are not, as well as the reduction in the risk of serious illness or death in society at large and in the workplace – what may be a fair response today may not be so in a few months from now, but that is a discussion for another day.

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