If you have any questions about other Labour or Land issues, contact McCarthy & Associates Attorneys on (033) 266 6170 or via email
If you have any questions about other Labour or Land issues, contact McCarthy & Associates Attorneys on (033) 266 6170 or via email
A question that has been asked by many employers recently has been whether an employee can be dismissed for refusing to be vaccinated. The Commission for Conciliation, Mediation and Arbitration (CCMA) has answered this question by saying “yes.”
In this case, the employer had implemented a compulsory vaccination policy, yet the employee, Theresa Mulderiji, refused to get vaccinated. Her employer had consulted with all of its employees regarding the policy and had allowed employees to apply for a vaccination exemption. Ms Mulderiji had applied for this exemption, arguing that she had the constitutional human right to refuse vaccination, yet her application was turned down.
Her application was denied because she had been employed as a business-related and training officer and was in constant contact with fellow employees, thus being high-risk. Her employer was subsequently unable to accommodate her and could not find an alternate position that she could take.
Ms Mulderiji was consequently dismissed. She then approached the CCMA with a claim of unfair dismissal, which failed. The CCMA commissioner held her dismissal to be substantively fair, stating that:
“In my own sense of fairness, I can only conclude that the applicant is permanently incapacitated on the basis of her decision to not get vaccinated and, by implication, refusing to participate in the creation of a safe working environment.”
However, it has to be remembered that not all cases like this one will have the same outcome. Dismissal should be a last resort, and all proper procedures and consultations should be followed before taking this course of action.
There has to be justification for such a dismissal. One must consider factors such as the risk an unvaccinated employee will pose in the workplace, the type of work done by the employee, and their reasons for wishing to remain unvaccinated.
This is why employers should obtain proper legal advice in such sensitive cases to avoid disputes and ensure full compliance with all legal obligations.