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The end of compulsory vaccination policies in South Africa? Not so fast

Much attention has been paid to the position taken by the trade union federation Cosatu in relation to employers who have adopted a mandatory vaccination policy, but that does not mean they are leaving in South Africa, say legal experts.

The country’s largest trading federation has criticized Standard Bank after it laid off about forty employees for refusing the bank’s mandatory vaccination policy.

In addition, the South African Society of Bank Officials (Sasbo) has taken the view that it is better to encourage vaccinations as opposed to imposing them. Standard Bank has recently withdrawn its mandatory vaccination policy, but that does not mean they are leaving.

Cosatu and Sasbo also appear to have been encouraged by a recent CCMA ruling which found that an employee’s dismissal for failing to comply with the employer’s mandatory vaccination policy was unfair. This CCMA award also stipulated that a mandatory vaccination policy was unconstitutional.

“In all likelihood, this award has crossed the boundaries of the CCMA’s jurisdiction, which, in determining whether the dismissal of an employee is fair, should only deal with the question of whether the employer had a fair reason. to fire the employee, and whether it followed a fair procedure. ”said Bradley Workman-Davies, director at Werksmans Attorneys.

The CCMA commissioner stated that only the government has the right to formulate a vaccination policy, and not an employer. The employer’s demand to be vaccinated is considered unconstitutional, the dismissal of the employee was therefore found to be unfair.

“However, this award is problematic for a number of reasons, not the least of which is that it differs from all previous CCMA awards on the subject, but in principle errs in proving to give the CCMA commissioner the power to make a constitutional decision, said Workman-Davies.

“This is a function reserved, well, for the constitutional court itself. As such, any confidence of Cosatu and Sasbo in this ruling would be a dangerous ground.

Standard Bank launches mandatory Covid vaccine in South Africa – new CCMA ruling calls it ‘unconstitutional’

Regulation

Workman-Davies also pointed to the Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace, gazetted in late June, which explicitly provides for mandatory vaccination policies.

He noted that the code gives an employer the right to implement a mandatory vaccination policy after conducting a risk assessment regarding his particular workplace and staff profile.

“As such, the current legislative framework still gives employers the right to carry out this assessment and, in fact, if there are sufficient health and safety factors that point to the occurrence of Covid-19 as a risk to health and safety. the workplace, for reasonable security measures – which may include the mandatory vaccination of employees.

“Employers should take comfort in the fact that if they have followed the code and made a risk assessment which leads to the conclusion that the implementation of a mandatory vaccination policy was or will remain a reasonable safety measure, any dismissal of employees for non-compliance is generally accepted by the CCMA as honest, and the recent case is an anomaly and whose findings on unconstitutionality are not binding.

As long as Covid-19 remains a hazardous biological agent, as recognized by the new code, mandatory vaccination policies can be seen as a reasonable measure to ensure the health and safety of employees, he said.

“Each case, as always, must be judged on its own merits.”

  • By Bradley Workman-Davies, Director at Werksmans Attorneys

To read: South Africans return to the office – but with a list of demands

The end of compulsory vaccination policies in South Africa? Not so fast

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