Umsebenzi with Teboho Mokoena

By Teboho Mokoena

Following hot on the heels of the Mulderij versus Goldrush, the CCMA has had to, once again, decide on the matter relating to the mandatory vaccination in the workplace.

The case we are examining is a matter involving Gideon J Kok, who was an applicant at the CCMA, on the one hand, and Ndaka Security and Services, cited as the respondent, on the other. The CCMA’s decision was handed down on 25 January 2020.

Briefly, the applicant who prior to his suspension, was employed as a safety practitioner. Gideon was suspended based on his refusal to be vaccinated. Ndaka Security and Services is a private security company contracted to SASOL LTD, which requires 100% vaccination for its employees, contractors and suppliers. Following his suspension, Gideon lodged a case with the CCMA citing unfair labour practice in terms of Section 182(2) of the Labour Relations Act (LRA).

Gideon’s arguments may be summarised as follows:
There is no legislation in place that compels any employee to be vaccinated. In this regard, he was essentially citing the ministerial directives, which it must be stated, do not, per se, render vaccination mandatory.
An agreement compelling an employee to vaccinate is contrary to the Constitution, the National Health Act and the consolidated directives issued by the employment and the labour minister.
Section 12 of the Constitution protects everyone’s right to freedom and security.

Gideon was recovering from Covid-19.
He is a devout Christian and while conceding that he had previously contracted Covid-19, he had recovered once he had stopped taking medication and relying only on his faith, and that, according to him, is what led to his successful recovery.
Security personnel are not essential service workers.
There is no commercial rationale for vaccination.
Gideon was presented with an alternative to vaccination, namely a weekly Covid-19 negative test result at his own cost. He declined this alternative.

Let me now interrogate some of Gideon’s arguments.
Firstly, apart from ministerial directives, Gideon is correct, there is currently no legislation that specifically compels employees to be vaccinated. That said, there are other pieces of legislation that may come into play under these circumstances. We shall examine those later.

While Gideon is well within his rights to cite Section 12(2) of the Constitution, which states that: (2) Everyone has the right to bodily and psychological integrity, including 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. On the other hand, there is also 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 the 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”.

Essentially, there is no right that is absolute and that in certain instances rights enshrined in the Constitution may be curtailed, so to speak, if the said curtailment is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

That said, it is my submission that the key words in this section to be relied upon is REASONABLE and JUSTIFIABLE. Gideon could still argue that his rights to HUMAN DIGNITY, EQUALITY AND FREEDOM stand to be impaired if he was to be compelled to undergo mandatory vaccination.

The fact that Gideon had previously contracted Covid-19 did not help his case. If anything, it demonstrated that he, like everyone else, is susceptible to contracting the disease and, therefore, posed a risk to everyone working with him.

His argument that he had only recovered once he had stopped taking medication and solely relied on his body’s immune system and faith, further weakened his case. Why take medication in the first place when he could, from the onset rely on his immune system and faith to rid his body of this disease?

The respondent was well within their rights to contend that, medication, and not necessarily his faith and indomitable immune system was the real reason he had recovered. It is also worth noting that Gideon was unable to adduce incontrovertible proof to back his claims up.

His argument that security personnel cannot be classified as essential service workers lacks substance. How he came to this conclusion, given the scope of work the company he worked, beggars belief. No one, in their right mind can justifiably pose this as a sustainable, argument.

Furthermore, his aversion that there is no commercial rationale for vaccination is simply implausible. Here you have a company that has been contracted by SASOL LTD to provide much-needed security services. Security is a sought after service, particularly for large companies such a SASOL LTD to secure their properties and, by extension, secure their commercial asserts. Even private households employ the services of private security companies for purposes of protecting lives and asserts. As I said earlier on, his rationale for relying on this argument is dumbfounding, to say the least.

Lastly, Gideon was given an alternative to submit weekly negative Covid-19 tests, which he declined. Once again, we should turn our attention to one of the arguments he posed: that he relies on his faith and invincible immune system to keep him healthy. If his faith in these two factors was as strong as he wanted others to believe, then why not comply with what I view as a reasonable and justifiable request from the employer?

In their defence, the respondent (employer) stated that they had conducted three risk assessments, based on the ministerial directive. A plan was developed and introduced and the leave policy amended to cater for the pandemic. Trade unions were engaged and agreement was reached.

Gideon was identified as an employee who was required to be vaccinated because he shared an office with 10 employees and worked in close contact with others.

The company said contact tracing after a positive Covid-19 test result from Gideon revealed he may have infected several colleagues, which required the business to close and all employees to isolate. It was not able to accommodate Gideon as his duties were such that he could not work from home or in isolation.

The CCMA’s finding, which I cannot fault, had this to say on the matter:

The Occupational Health and Safety 85 of 1993, specifically Section 8 (1) (2) imposes a statutory duty on all employers to take reasonably practical measures to ensure a healthy and safe working environment.

Section 9(1) (1) states that every employer (including the state/government) shall conduct his undertaking in such a way as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

The CCMA found that the requirement to vaccinate is a “reasonably practical step” in ensuring the safety of employees as envisaged by the Occupational Health and Safety Act.
Furthermore, it found that there was a clear commercial rationale for requiring vaccination, as the closure of the offices due to an outbreak was disastrous and the employer’s top client required 100% vaccination.

The CCMA also relied on the previously decided cases, namely Minister of Safety and Security and Another vs Gaqa, citation: 2002, ZAWCHC 9, wherein the court held that public interest took precedence over individual rights, and consequently ruled that an individual could be compelled to undergo surgery, despite not having consented to undergo such surgery. The other case that the CCMA relied on was that of Minister of Health of the Province of the Western Cape vs Goliath and Others, citation: 2009 (2) SA 248 (C), wherein the court compelled surviving individuals to receive treatment for Tuberculosis against their will.

I have no doubt in my mind that Gideon will refer the matter to the Labour Court. It therefore remains my humble submission, as per the previous column relating to Mulderij vs Goldrush, that up until government issues clear, unequivocal directives on mandatory vaccinations, and these directives are properly ventilated at the Constitutional Court, forums such as the CCMA will, for the foreseeable period continue to grapple with this highly contentious issue.

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