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Suspension for not vaccinating
Two recent CCMA arbitration awards have dealt with issues arising out of the implementation of mandatory vaccinations
Following hot on the heels of the Goldrush1 mat-
and it was not possible for him to work in an iso-
ter, the arbitrator in Gideon J Kok v Ndaka Secu-
lated office, given the nature of his job. Kok had
rity and Services (Case no: FSWK 2448-21) found
been given ample time to air his objections, and
that an employee who had been denied access
also given the option of submitting a weekly Cov-
to the workplace on account of refusing to get
id-19 negative test result as an alternative to vac-
vaccinated against Covid-19 had been suspend-
cination. Importantly, although it didn’t dispute
ed and that the suspension was fair. The appli-
the CCMA’s jurisdiction, the employer argued
cant (Kok) had referred an unfair labour practice
that Kok had not been suspended, merely in-
dispute to the CCMA, claiming that he had been
structed to stay at home or provide a weekly neg-
suspended from duty and that the suspension
ative test result. He was still being paid his salary.
was unfair.
in the workplace.
Kok argued that to compel him to be vaccinated Kok was employed as a Safety Practitioner,
would infringe his right to freedom and security
stationed at the premises of the employer’s
of the person (s12 of the Constitution), and there
client. According to the employer, in terms
was no law that compelled an employee to be
of a Risk Assessment that complied with
vaccinated. Mandatory treatment was prohibit-
the Consolidated Directions issued by the
ed by the National Health Act, and although he
Department
Labour2,
agreed that in terms of the Consolidated Direc-
Kok had been identified as someone who was
tions strong measures could be taken, this did
required to be vaccinated.
not include barring him from the workplace;
of
Employment
and
the employer could have resorted to alternative His duties entailed identifying security risks on
measures. He had previously contracted Cov-
site and required him to be “physically involved”
id-19 and had relied on his Christian faith and his
with guards, the client and the public. He also
body’s natural immunity to
shared an office with about 10 other employees Footnotes 1 Theresa Mulderij v The Goldrush Group Case no: GAJB24054-21 (discussed in last week’s Comment) 2
“Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces” (Government Gazette of 11 June 2021)
recover.
