Unfair dismissal for not vaccinating: CCMA award

A number of employers which have introduced mandatory vaccination policies, have dismissed employees for non-compliance with their vaccination requirements. A Commissioner of the CCMA has issued a recent CCMA arbitration award on unfair dismissal for not vaccinating, which found that an employer is not entitled to make vaccination mandatory.

In the award, the Commissioner found that it is government’s role to create laws of general application including laws requiring mandatory vaccination, and that this is not the role of the individual employer.

The Commissioner also gave consideration to the fact that a minority of employers require vaccination as mandatory, and they are primarily in the private sector. The Commissioner estimated that this is less than 1% of employers. He also stated that it makes no sense to require vaccination in the workplace when employees are exposed to unvaccinated persons in supermarkets, among family members, to kids who don’t need to vaccinate to attend school, and in a variety of other settings.

He therefore found that a rule requiring vaccination is not reasonable, and that it would be unconstitutional for an employer to impose such a rule on its workforce.

This approach is contrary to a string of earlier CCMA arbitration awards which upheld dismissals based on non-vaccination. The shift in approach may have been influenced by the fact that the pandemic is now perceived to be ‘under control’. Mask-wearing is no longer mandatory, and the national vaccination drive is not as intensive as it previously was.

Interestingly, the dismissal in the CCMA dispute took place during a period when employers were permitted, in terms of a directive issued under the Disaster Management Act, to implement mandatory vaccination policies subject to a risk assessment having determined that this is necessary.

The Labour Court is to determine a number of review applications against CCMA awards involving non-vaccination, and it will be interesting to see how the Labour Court views a CCMA arbitration award on unfair dismissal for not vaccinating in the context of a case on review.

The award can be viewed on the Labour Law News website.