UNCERTAINTY ON THE FAIRNESS OF DISMISSING ANTI-VAXERS

The CCMA arbitrator found that her dismissal was fair essentially because: � The employer’s mandatory workplace vaccination policy, from its drafting up to its implementation, had followed all the crucial steps; � The employee had refused to participate in the creation of a safe working environment.

Several arbitration decisions followed upholding the dismissal of anti-vaxer employees.

However, the CCMA more recently ruled against the retrenchment of an antivaxer. In the case of Kgomotso Tshatshu vs Baroque Medical the employer’s mandatory vaccination policy was based on the operational need to avoid employees missing work due to illness and to ensure a safe working environment for its employees.

Ms. Tshatshu refused to be vaccinated, claiming that she had suffered an adverse reaction to the flu vaccine she had previously received. She provided the employer with two medical certificates confirming this claim. Despite this she was retrenched without receiving any severance pay because the employer had found that the medical certificates that she had provided were neither reasonable nor substantiated.

When the employee took her dismissal to the CCMA the arbitrator ruled in her favour. I understand the arbitrator’s ruling to be as follows: � The employer did not provide any evidence that a blanket mandatory vaccination policy had been effective in any other organisation. � Mandatory vaccination policies are illogical and fruitless because employees are frequently exposed, outside of the workplace, to many unvaccinated people. As a result, employees are still at risk of contracting Covid whether they are vaccinated or not. � The employer did not submit any evidence relating to the risk assessment that it had claimed to have conducted prior to implementing its vaccination policy. This might have been because the risk assessment had never been carried out or because the employer did not want to submit its results. � The employer’s policy document did not deal with the reasonableness of the mandatory vaccination requirement. � No alternative to retrenchment, other than getting vaccinated, had been offered to the Applicant � The Commissioner disagreed with the employer's argument that the Applicant was be entitled to severance pay. � The dismissal was substantively unfair, and that the Applicant was entitled to 12 months’ severance pay.

The question now arises as to whether the previous CCMA decisions on the issue of anti-vaxer dismissal could be reversed due to this latest decision. Legally, it is possible for an employee who is dissatisfied with an arbitration award to take it on review to the Labour Court. However, the Court will normally only be willing to consider overturning an award if it is satisfied that the arbitrator breached the rules of arbitration so materially as to render the award fatally flawed. In my view, the fact that a CCMA arbitrator has now found in the employee’s favour would not be sufficient grounds for overturning a different award previously made against another employee.

That is, any award under review should only be overturned on the basis of the arbitrator’s conduct rather than on the outcome of another award. It is fairly common that arbitrators make substantially different findings on the same issue. And this is usually due to the fact that the unique circumstances of each case are substantially different.

The Tshatshu decision is the first one that I am aware of where the CCMA has ruled in favour of the dismissed antivaxer. It appears that the reasons for this divergent decision could be the following: � The arbitrator may have a different attitude to forced vaccination as compared to the commissioners in the other cases. This possibility is indicated by the arbitrator’s comment that mandatory vaccination policies are illogical. � The employer failed to prove, by submitting a risk assessment report, that the employee’s vaccination was necessary to avoid a health risk. � The employer’s policy document did not deal with the reasonableness of the mandatory vaccination requirement. � It does not appear that the employer, in this case, tried to accommodate the employee. � The employee submitted two medical certificates in support of her claim that she reacted badly to vaccinations.

The above factors do distinguish this case from the Mulderij case. The Tshatshu decision acts as a warning that dismissals of anti-vaxers will not always be upheld, and that employers must: � Take proper cognisance of medical certificates; � Prove, via proper risk assessments, that vaccinations are essential; and � Try to accommodate anti-vaxers before considering dismissing them.

Failure to comply with these requirements could open companies that dismiss anti-vaxer staff to litigation. �