I need help with my employer who is harassing me because I have refused to have a COVID vaccination. I also suspect that my employer will withhold my pension on the grounds of incomplete forms.

The long answer

Whew! That is a long list of problems and this will be a long answer…Perhaps we should start with the issue of the Covid vaccination, and go on to look at the case being dismissed by the CCMA, and then consider the other issues like the pension forms.

There has been a lot of furious controversy and argument around whether an employer has the right to implement a mandatory vaccination policy – in other words, to require that all employees must be vaccinated. There have many cases taken to the CCMA on this issue, with different outcomes. One well-known case was on 21 January 2022, Mulderij v The Goldrush Group, where Ms Mulderji had refused to get vaccinated and her employer dismissed her on the grounds of incapacity, meaning that her refusal to be vaccinated meant that she was unable to do her job. The CCMA agreed that Ms Mulderij was permanently incapacitated by refusing to get vaccinated and in effect, refusing to create a safe work environment.

Another case taken to the CCMA in May 2022, Bessick v Baroque Medical (Pty) Ltd, where Ms Bessick had refused on religious, medical, and personal grounds to be vaccinated, had a similar outcome: the CCMA found the employer’s policy justifiable as the employer had conducted a risk assessment and that had not been contested at the CCMA by Ms Bessick. 

But in a completely opposite ruling by the CCMA less than two months later, Kgomotso Tshatshu v Baroque Medical (Pty) Ltd, which involved the same company, the CCMA found that ‘mandatory vaccine policies have no place in our labour market and are unreasonable.’ The CCMA went on to state that on the basis of equality, freedom, and security of the person and the regulations issued by the government, only the government had the right to issue rules such as mandatory vaccines, and not employers. The CCMA found that the dismissal of Ms. Tshatshu was substantively unfair and unconstitutional, and she was awarded maximum compensation. It was pointed out that the employer had failed to lead evidence on its risk assessment. A risk assessment is legally required, and a number of commentators emphasized that employers should be very careful that they can defend their vaccine policies against their properly conducted risk assessments.

The Consolidated Employers Organisation of South Africa, (CEOSA) said that the Commissioner, in this case, did not consider the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace 2022, dated 15 February 2022, which permits employers to implement a mandatory vaccination program and obliges workers to comply with the employer’s plan. CEOSA went on to say that these provisions remain the same in the most recently published Code of Good Practice: Managing Exposure to SARS-COV-2 on 24 June 2022.

Thus, that CCMA ruling threw everything into confusion - but as a useful article by CMS Law on Covid vaccinations points out, the CCMA is not a court and its awards do not pass into law, the way the labour court’s findings do. Whatever award the CCMA makes applies only to the people involved in that particular case. The CCMA is not a law-making body but operates in terms of the powers given to it by the Labour Relations Act (LRA) of 1995.  

CMS law says that "Once an award or ruling has been issued by the CCMA either party can take the award on review to the Labour Court if they are dissatisfied with the outcome. A review is different from an appeal.  In an appeal, the court must assess whether the decision is right or wrong.  However, in a review, the court must decide whether, on the evidence available to the arbitrator, the commissioner came to a reasonable decision. This means that the court does not decide, as in an appeal, whether the decision is right or wrong."

Once the Labour Court has determined the review and handed down its judgment, the next step would be for either party to take the matter on appeal to the Labour Appeal Court. If the matter is heard by the Labour Appeal Court, it will need to decide whether the Labour Court's judgment was right or wrong."

In the final resort, a CCMA ruling can be appealed in the Constitutional Court if granted leave for the appeal.

So, going back to what the Commissioner said about only the government having the right to make the rules about mandatory vaccines, what are the government’s rules?

These are the rules that apply:

1. The Occupational Health and Safety Act (OHSA) of 1993 which says that an employer has to take reasonable steps to provide a safe and healthy workplace. In the CCMA case of Kok v Ndaka Security and Services, Kok, who refused to be vaccinated, worked at a Sasol site which required a 100% vaccination rate and so he could not attend at the site. He was suspended without pay on a ‘no work/no pay’ basis, and told to return to work once he had been vaccinated or to submit a weekly Covid test result at his own expense. The CCMA found in his case that the requirement for employees to be vaccinated was “a reasonable practical step” to ensure a healthy and safe workplace in terms of the Occupational Health and Safety Act, and found the suspension without pay to be fair.

2. The employer has to comply with the protocols set out in the Covid Regulations issued by the Minister of the Department of Employment and Labour on 15 March 2022. The Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace came after the termination of the National State of Disaster introduced by the government at the start of the pandemic. ENSAfrica said that in terms of this Code, every employer had to take measures to determine the vaccination status of its employees. 

3. The Protection of Personal Information Act (POPIA) provides that a responsible party (the employer in this instance) must take reasonably practicable steps to ensure that the personal information of its employees is complete, accurate, not misleading, and updated, where necessary. ENSAfrica went on to say, “The percentage of a workforce that is vaccinated will directly inform the risk assessment every employer is required to conduct and this information must be updated on a regular basis.”

4. The Minister of Employment and Labour published the Hazardous Biological Agents Regulations (“HBA Regulations”) on 16 March 2022, which applies to all employers and self-employed persons within workplaces, in terms of section 43 of the Occupational Health and Safety Act. Covid is listed as a “Group 3” hazardous biological agent (“HBA”). The HBA Regulations, and the Code of Good Practice: Managing exposure to SARS-COV-2 in the Workplace (“the Covid Code”) involve taking reasonable steps to control exposure of such HBAs within the workplace. These include, but are not limited to: risk assessments and exposure monitoring in respect of HBAs, record keeping and medical surveillance. The Covid Code compels employers to supply their employees with information regarding the vaccines, such as: what vaccine it is, the benefits and any potential risks and contra-indications.

5. In May 22, the government published new regulations in terms of the National Health Act about Covid, which said that “vaccinated against Covid-19” means having received at least one dose of the Covid vaccine.

Andre Vlok in an article for oldmutual.co.za on 12 April 2022 says that the new Covid Code “simply seeks to deal with the consequences of an employee’s decision not to be vaccinated and doesn’t enforce vaccination. If an employee refuses to be vaccinated, the Code sets out a series of processes for the employer, which include counseling and negotiating other options. While the Code has a conciliatory tone on the matter, there’s little doubt that it seeks to establish and strengthen the employer’s right to dismiss for incapacity (at least) in such instances. This aligns it with recent CCMA and Labour Court decisions that directly and indirectly support an employer’s right to dismiss or limit access to the workplace.”

So, let’s go back to what the courts have ruled:

There has only been one labour court case about mandatory vaccinations so far. This is the Solidarity v Ernest Lowe case that was heard in February 2022. 

Solidarity, the union of the employees, challenged the lawfulness of requiring employees to be vaccinated or to produce weekly Covid test results at their own cost before they were allowed to enter the workplace.

Geoffrey Allsop set out the story of the case in a GroundUp article on 15 March 2022: The company called Ernest Lowe had informed its employees that from January 2022 a Covid vaccination policy would be implemented.

The company said it would not force any employee to be vaccinated nor to disclose their vaccination status, but in order to enter the workplace, all employees would have to have a Covid vaccination or produce a negative Covid test each week, at their own expense.

One employee, Johetta van Rensburg, said she would not agree to be vaccinated but would submit a weekly negative Covid test if the employer agreed to pay for the test. The employer refused.

She went to her union, Solidarity, who wrote to the employer saying that the employer had breached her employment contract by requiring the Covid test as this had not been part of her employment contract.

The employer responded that it was obliged by the Occupational Health and Safety Act to provide a safe and healthy workplace for its employees and for customers.

Van Rensburg went to a doctor who recommended that she be exempted from the vaccination because she suffered from cardiac arrhythmia. The employer said she should provide a specialist cardiology report before they could consider this. She did not provide such a report.

Van Rensburg turned up to work in January without a negative Covid test. She was refused entry and the employer said the no-work-no-pay principle would be implemented and that she might face disciplinary action. 

The union, Solidarity, took her case to the Labour Court on the grounds that the employer had breached her employment contract by requiring the Covid test which had not been part of her employment contract.

Acting Judge Molatelo Makhura said he had to decide two matters: whether the vaccination policy breached Van Rensburg’s employment contract, and whether the vaccination policy failed to comply with the Occupational Health and Safety Act or the health and safety directions issued by the Minister of Labour.

On the first matter, the judge found that requiring a Covid test did not breach Van Rensburg’s contract. On the second matter, that the Occupational Health and Safety Act permitted a mandatory vaccine policy to be implemented if certain requirements were met. But he said that as the company had said that it would not force any employee to be vaccinated and that an employee was not obliged to disclose their vaccination status, and that an unvaccinated employee could still enter the premises as long as they brought a negative Covid test with them, the company could not be said to have a mandatory vaccine policy which excluded unvaccinated employees from the workplace.

The case was dismissed and each party was ordered to pay their own legal costs.

The Solidarity v Ernest Lowe case was not based on constitutional rights, and thus there may well be further court cases that might invoke conflicting constitutional rights.

Ivan Israelstam, in an article for labourlawadvice.co.za on October 12 2021, says that Section 12(2)(b) of the Constitution gives every person the right to “…security in and control over their body”. And section 15 gives everyone the right to freedom of religion. 

On the other hand, he goes on to say that section 36 of the Constitution says that the rights conferred by the Bill of Rights can be limited under specified conditions. Employers may well argue that in the case of Covid vaccinations, the employees’ section 12 and 15 rights should be limited in the greater social interest of preserving life and the survival of the economy.

He recommends that employers get employees to agree to vaccination through the use of education and non-coercive persuasion, and where this fails, to consider alternatives to dismissal such as working in isolation. 

CMA LAW said that it was unlikely that “that a blanket approach will be accepted by our courts and each matter will need to be determined on its own merits. The key to these disputes remains the nature of the employer’s business and, more importantly, the nature of the employee’s position.”

I noted in your CCMA 7.13 form requesting arbitration that your employer was Old Mutual Insure, and came upon an article by Ray Mahlaka in the Daily Maverick on 12 July 2022 that stated that “Standard Bank and Old Mutual have dropped their Covid-19 mandatory vaccination and testing policies for all workers, months after implementing them”.

Mahlaka says that Old Mutual had a mandatory vaccination policy which it announced to the public in November 2021. Old Mutual gave its workers until January 2022 to produce certificates proving their vaccination status. Like Standard Bank, Old Mutual no longer has a vaccination policy. He quotes the CEO of Standard Bank’s South Africa operations, saying, “Based on the current context of the pandemic, we believe that our vaccination policy is no longer required. Consequently, it is no longer compulsory for employees to be vaccinated, or to produce a negative PCR or rapid antigen test if they are unvaccinated.”

Mahlaka also speculates that another reason for dropping their mandatory vaccine policy is that the union, Sasbo, is prepared to take both companies to court to challenge their dismissing of unvaccinated workers: 40 workers were dismissed by Standard Bank and he estimates 89 at Old Mutual.

He said it was unclear if Standard Bank and Old Mutual intended to reinstate workers who had been dismissed in this regard, but that Old Mutual had said that all the incapacity hearings had now been suspended.

So this may well change things for you personally, and you should look into it. Perhaps you can ask Sasbo the Finance Union as it is known, for advice. Sasbo has a recognition agreement with Old Mutual Insure. 

Sasbo contact details: 

• Email: benb@sasbo.org.za for inquiries relating to the insurance sector, especially Santam and OM Insure.

To return to your CCMA 7.13 form asking for arbitration, which was canceled on a technicality: while I cannot know what that technicality was, I did notice that you did not fill in a section on the first page of the form headed: "The issues in dispute are".

That may have been the technical reason it was canceled. 

Also on the second page, in the section headed: "What decision would you like the Commissioner to make?", you say that you would like to resolve the issue or as the employer continues to harass you, reach a negotiated settlement. This does not answer the question of the decision you want the Commissioner to make, as you did not fill in what the issues in dispute were, on the first page. Also, if you were asking for arbitration, there is no further scope for negotiating a settlement – the Commissioner simply gives his decision which both parties must abide by. That may also have been the technicality.

About your pension: if you are worried that you may not have filled in your pension forms correctly, you should ask the HR department to assist you to check if there are any errors. It is HR’s job to assist employees in that way.

And finally, if a person is in a very stressful situation, as you certainly seem to be, it is often helpful to arrange to speak to another person openly and thus feel less isolated. This might be a counseling session. Perhaps you can investigate whether your medical aid covers such a thing. A number of medical aids provide cover for three such sessions with a counselor or psychologist.

Wishing you the best,
Athalie