By Teboho Mokoena

As you will recall, this column has dedicated no less three articles on the subject of Covid-19 in the workplace, with specific focus on the controversial issue of mandatory vaccinations in the workplace. The articles I am referring to were published on 30 July 2021, 13 August 2021 and 19 December 2021.
In one of the, I predicted that the matter of mandatory vaccination in the workplace would remain a divisive subject of interest within our labour law discourse.
You will also recall I did say that what we require as a country is for this matter to come up before the Constitutional Court, in order to have a final, binding precedent in this regard.
As things stand, we may not have to wait for too long before we receive the much-needed judgment from the apex court. Sunday Independent recently reported that the National Black Consumer Council (NBCC) has already approached the Constitutional Court to decide, on an urgent basis, “whether or not the implementation of mandatory vaccines was ultra vires (beyond the powers) and derogates non-derogable constitutional rights”.
The paper reported that the NBCC secretary-general Dr Raynauld Russon has issued a stern warning to employers.
Dr Russon said: “It is advisable for employers to be patient because they may find themselves facing class action and liability cases.
“Any employee who is asked to take mandatory vaccination must ask the employer to sign a liability statement confirming that the employer will be responsible for any consequences of the vaccine.”
This piece was prompted by the recent debate which was sparked by the dismissal of a number of Standard Bank and Old Mutual employees who had refused to undergo mandatory vaccination in their respective workplaces.
As we have seen, these dismissals reignited the already smouldering embers around this issue, with labour federations, Cosatu and Saftu denouncing the position adopted by the Standard Bank and Old Mutual and calling on the affected workers to lodge disputes with the CCMA and the Labour Court.
To be fair, organised labour, civil society groups started raising concerns as far back as the Mulderiji case. In a joint statement issued then, Cosatu, Fedusa and Nactu said they were extremely disappointed by the CCMA’s upholding the dismissal of Mulderiji for refusing to be vaccinated.
Pandemic Data Analytics (Panda) chairperson Nick Hudson said the judgment implemented the wrong assumptions about what the vaccines do and was “very flawed”.
“This can be challenged at the Labour Court on appeal, and I hope it does. It is an irrational judgment,” said Hudson.
The non-profit HBR Foundation, which also represents those who were fired for refusing to be vaccinated, said it was not true that the unvaccinated were putting those who are vaccinated at risk.
Human rights activist Schalk van der Merwe said: “What started as protection for employees, and to make the workplace a safe place for employees, has turned into gross human rights infringement against many. If the government wanted the protection of people, then certain measures should have been put in place. Measures that do not infringe people’s basic human rights.”
Christian group Watchers and Gatekeepers’ Pastor John Mosepele said the ruling against Mulderiji was used to scare those who don’t want to take “this experimental” injection.
My analysis of the position held by all the above groups, including organised labour, is that the case is largely premised on upholding Section 12(2) and 13 of the Constitution:
“Everyone has the right to bodily and psychological integrity, which includes the right— (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent.”
Section 13 guarantees one’s rights to freedom of religion, belief and opinion. Medically, among others, employees may state in their objections that they could potentially experience allergic reactions to Covid-19 vaccines.
On the other hand, the CCMA, in a number of its arbitration awards on this subject, appears to have relied on Section 36(1) of the Constitution, which states that the “general requirements for the limitation of any right is that it may be limited only in terms of law of general application “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
Based on this constitutional clause, the CCMA upheld a number of dismissals of employees who refused to get vaccinated against Covid-19.
On 22 June, CCMA Commissioner Richard Byrne found that it was unfair and unconstitutional for Baroque Medical, which supplies and sells medical equipment, to retrench Kgomotso Tshatshu for refusing to get a Covid-19 vaccination. The company was ordered to pay her 12 months’ salary as compensation (the maximum allowed). This award marked a notable departure from what had become somewhat of a norm as far as CCMA ruling in this regard were concerned.
Critically, this ruling contradicted an earlier award by the same CCMA which was delivered in May wherein a Commissioner in that case held that the same company, Baroque Medical, was within its rights to retrench another employee, Cecilia Bessick, who had also refused to get a Covid-19 vaccine.
Of course, this was to be anticipated as the CCMA awards, by their very nature, do not constitute binding legal precedents in the manner that court judgments do. So, different commissioners are allowed to arrive at varying conclusions when faced with similar matters.
It is also worth mentioning, as has also been observed by other commentators on this subject, that until the Labour Court issues a binding judgment on the issue of mandatory vaccinations; we will continue to grapple with varying rulings from the CCMA.
That said, it remains my firm opinion that in as much as the Labour Court and the Labour Appeal Court may provide a much-needed degree of clarity, it will be up to the Constitutional Court to issue a final, binding precedent on this matter.
In closing, going back to the Standard Bank matter, it is also worth mentioning that the bank has subsequently withdrawn its mandatory vaccination policy, citing the recent government directive on the relaxation of some of the Covid-19 preventative measures.
Notable as this development might be, I am of the opinion that a firmer policy position is required to deal not only with the Covid-19, but all other contagious diseases in the workplace.