The CCMA has issued an award in favour of an employee who was retreched after refusing to vaccinate. This is the latest in a series of CCMA awards on vaccination, and one of the first in which it has been found that there was an unfair dismissal for non-vaccination.
The Commissioner expressed the view that “mandatory vaccination policies are not only unreasonable, but… they have no place in our labour market”.
The Commissioner also questioned whether it is reasonable for employers to impose a rule requiring vaccination, where the employer’s role is not to legislate, and where a person can be exposed to Covid-19 in many other settings (like supermarkets and schools) where vaccination is not mandatory.
He concluded that the right to issue any law of general application on vaccination lies with government and not with individual employers.
He ruled that the employee’s dismissal was unfair, and awarded him 12 months’ remuneration as compensation.
The commissioner took a more critical view of an employer’s ability to impose rules in the workplace relating to health and safety, and was more sympathetic to the position of employees than previous awards on the topic.
In many previous awards, CCMA commissioners have rejected employees’ claims of unfair dismissal for non-vaccination, where employers have relied on incapacity, operational requirements and misconduct as reasons for dismissal.
It remains to be seen what approach the Labour Court will take, as a number of the arbitration awards on the topic have been challenged through review applications which are currently pending.
Read the award here:
Tshatshu v Baroque Medical
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