Springboks and Foxes: Two of a kind

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Clem Sunter 15 July 2022

SPRINGBOKS AND FOXES: TWO OF A KIND

In the comfortable warmth of my sitting-room, I recently had the privilege of watching the two closely contested rugby games between the Springboks and Wales. I am looking forward to the series decider in Cape Town on Saturday. Whichever way the match goes, I cannot help feeling that the example set by the Springbok rugby team is pivotal in another context: that of ensuring a positive economic future for South Africa.

Let us look at the recent history of rugby union here first. Since 1994, the Springboks have undergone the transformation from a white to a fully non-racial team. During this process, they have won the Rugby World Cup three times – a feat only accomplished by one other nation, New Zealand. Along the way, individual heroes like Chester Williams, Victor Matfield and Siya Kolisi have inspired countless youngsters to take up the sport.

The reason is simple. The Springboks represent all that is good about South Africa. They play with vision and determination; they overcome the inevitable setbacks and injuries associated with such a physical sport; they adapt their strategy and tactics to accommodate the strengths and weaknesses of opposing sides; and they exude a magnetic team spirit in backing each other up while performing their individual tasks to the maximum extent of their personal abilities.

South Africa is a good nursery

Above all, the players are chosen on merit because you cannot win international matches with a suboptimal team. When so many people write dismal articles about this country’s failing education system and lack of opportunities for young people, it is quite something that natural selection with no racial bias has produced this diverse side of talented players who have combined into being a world-class phenomenon. South Africa is a good nursery for some activities at least.

At the same time, one must also praise the invisible support system from schools to local clubs to provinces to national structures that work in combination behind the scenes to achieve this result. They may not get the same celebrity status, but they are as crucial to the success of the whole exercise as the performance of the players themselves. They constitute the hidden tunnel out of which the stars emerge onto the playing field. It is a shame that, in other sports like soccer, the pipeline is nowhere near as effective in producing the local talent to win international tournaments.

From the scrum of rugby to the hustle of business

The principal message of this article is that what has made rugby such a success in South Africa applies equally to that other competitive and more universal game we call business. We already have plenty of players in the second game here. I like to call them the foxes because they exhibit the same kind of agility and bravery with their money as their sporting equivalents do with their bodies.

From the entrepreneurs in the informal sector selling their products at street-corners to the well-known retail chains in every shopping mall, foxes are plying their trade in the hope of winning their particular game, however modest or large the playing field is. Their bright eyes pick up new opportunities faster than their slower-moving competitors.

Yet, unlike the Springboks, we do not have the pipeline which allows foxes in our society to grow from scratch into something substantial. Nor do we have an encouraging environment like the passionate spectators who loudly cheer the Springboks on to victory from the stands. Quite the reverse. We

have some people who strongly disapprove of the game of business from an ideological point of view and want to drown it in red tape. We have others who want to replace it altogether with non-competitive pursuits over which they exercise complete control. Little do they know that the final score is totally beyond their influence. Somehow, they feel threatened by the foxes who are the real wealth-creators for any nation.

As far as the pipeline is concerned, how many schools in this country run an entrepreneurial course alongside normal lessons and sport, in order to plant the seeds of being an enterprising fox? I ask this question because there is an inconvenient truth at the heart of life today. The nature of work has changed in this century and schools are expected to be educating pupils for the market of the future, not the past.

No longer are governments and big business the major creator of jobs that they were in the last century. Lack of affordability and smarter technologies have massively reduced the workforce of the large employers. In all parts of the world, therefore, more and more people have to create jobs for themselves rather than apply for jobs that already exist. The Covid pandemic has intensified this trend by encouraging people to work digitally from home as opposed to going in person to the office.

An example of foxes in action

South Africa is no exception to being a victim of the collapse in the traditional job market. This is one reason why we have such an appallingly high unemployment rate of 64% for those aged 15-24 and 35% overall. By comparison, the latter unemployment figure in America and Australia is currently under 4%. They have discovered and nurtured the foxes within their borders and imported others from overseas. And that is where the answer lies.

High employment rate of 64%

Like rugby, we have to embrace business as an authentic game in which a growing proportion of the country’s population will be involved as foxes. They become the business Boks - either as individuals or in small teams. A few really enterprising foxes will make it into the medium-sized or big business category. Others will fail and have to start again on a different playing field.

I would like to provide one great illustration of South African foxes in action. At a mall near Simon’s Town in the Western Cape is a café cum restaurant at which I am a fairly frequent customer. I like the noise of families chatting at nearby tables, while the odd savant sits alone by the window peering into a laptop. The point is that each time I enter the door, the staff operate as a team similar to a game of rugby. There is a lady who welcomes me courteously by name, a man who makes the most delicious cappuccino and - when there is no load shedding – I can get the best battered fish and chips in the province. Every time they beat the opposition hands down. Repeat Springbok model over and over again

The experience I have related gives a clue as to what a real economic revolution is all about. At grassroots level, so many South Africans forget about their differences when working towards a specific goal. Just like the rugby players, they combine their different talents to produce a winning proposition for local people and tourists, and at prices which are surprisingly cheap by international standards. Rather you build on something that is already there from the bottom up than invent something completely new.

Hence, our path to becoming a winning nation is to take a pocket of excellence like the Springboks and repeat their model again and again in the world of business – especially by getting the private sector to create a similar pipeline to rugby out of which promising young people can emerge as innovative foxes. That is how we will win the Business World Cup in years to come. Springboks and foxes have a lot in common. Now let’s blow the whistle to start the match side by side.

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CCMA decides that an employer’s vaccination policy is unreasonable and unconstitutional – should employers be concerned?

In a recent decision of the Commission for Conciliation, Mediation and Arbitration (CCMA) in the matter between Kgomotso Tshatshu and Baroque Medical (Pty) Ltd, the commissioner found the retrenchment of an employee for refusing to comply with the employer’s vaccination policy to be substantively unfair, and awarded the employee the maximum compensation, equivalent to 12 months’ remuneration.

In his award, the commissioner expressed the view that an employer has ‘no right to formulate any Covid-19 Vaccination Mandate’ in the workplace, as this is the prerogative of Government; and that ‘Mandatory Vaccine Policies are not only unreasonable, but they have no place in our labour market’.

While the decision (and the views expressed therein) may be welcomed by many who have voiced their opposition to workplace vaccination policies, employers who have such policies in place need not necessarily be alarmed. The decision is only one of many to have come out of the CCMA recently and does not create binding precedent. Further, while the ultimate outcome reached on the fairness of the employee’s dismissal may be reasonable in the circumstances of the case, there are, in our view, a number of issues with the commissioner’s findings.

Background to the case

The employer (Baroque Medical) introduced a compulsory Covid-19 vaccination policy at its workplace. In terms of the policy, vaccination was framed as an operational requirement, as it would reduce the time that employees spent away from work due to illness and ensure a safe work environment.

The policy required all employees to be vaccinated, failing which their services ‘may then be terminated for operational reasons’. It was recorded that there were no alternative positions or roles that did not require vaccination. Four employees were ultimately retrenched on this basis.

The employee in this case, a senior inventory controller, refused to be vaccinated because of her fear of the vaccination, explaining that she had experienced a previous negative response to a flu vaccine 10 years earlier. She also objected on Constitutional grounds, namely her right to bodily integrity, stating that the vaccine was experimental.

Baroque Medical required the employee to substantiate her refusal on medical grounds, but ultimately rejected the doctors’ notes she presented as being insufficient. Having rejected her grounds for refusing to vaccinate, the employer dismissed the employee and did not pay her severance pay.

Findings of the commissioner

The commissioner found the employer’s vaccine mandate to be an unreasonable rule. On this basis, the dismissal was found to be unfair. As for the process, the commissioner found that because the employer had chosen the route of retrenchment, it had to show that it went through a consultation process. Since it had already decided up front that any employee who refused to vaccinate would be dismissed, the consultations were largely lip-service.

In coming to his conclusions, the commissioner made, among others, the following findings:

The State has not passed any legislation requiring all employees or citizens to vaccinate, nor have any state departments or the judiciary implemented compulsory vaccination policies for their employees. This is because doing so would amount to unfair discrimination and would be unreasonable.

In terms of the Constitution, everyone has the right, among others, to bodily and psychological integrity and there is no requirement for employees to provide any reasons in this regard – they can simply exercise the right. Referring to section 36 of the Constitution, the commissioner reasoned that the employer’s vaccine mandate was like a ‘law of general application’, in that it was a general rule applicable to all employees in the company. However, as a company rule is not a law passed through the parliamentary and constitutionally entrenched process, it does not enjoy inherent legitimacy and is open to challenges as to reasonableness and fairness in addition to the limitations imposed by section 36.

The Consolidated Occupational Health and Safety Direction, which applied at the time of the dispute, required a risk assessment to be performed by the employer which could identify certain employees to be vaccinated and it did not provide for or permit a blanket mandatory vaccination policy.

The employer did not produce a risk assessment or lead any evidence on it. Accordingly, the employer could not demonstrate a link between the rule and its objective.

There can be no value or objective to a mandatory vaccination policy in circumstances where only a handful of companies have such policies in place and an extremely small number of people adhere to them. Employees

are also not confined to the workplace and will be exposed to others in their daily lives. Accordingly, such a workplace rule cannot be reasonable.

In our respectful view, the commissioner’s reasoning fails to appreciate the principle of subsidiarity and the fact that there is existing legislation (being the law of general application) which creates the legal framework for vaccination policies in the workplace.

In particular, the commissioner failed to consider the employer’s duty, in terms of the Occupational Health and Safety Act, to create and maintain, as far as reasonably practicable, a safe and healthy working environment. The commissioner also failed to consider the Hazardous Biological Agents Regulations and the Code of Practice on Managing Exposure to SARS-Cov-2 in the Workplace, which further inform this general duty. We discuss this legislative framework further in our previous newsflash here.

The commissioner does, however, rightly consider the reasonableness of the employer’s vaccination requirement with reference to its risk assessment and it appears that this may well be an area where the employer fell short.

Interestingly, in an earlier dismissal dispute involving one of Baroque Medical’s other employees (who had also been retrenched for refusing to vaccinate), a different commissioner accepted that the company had an appropriate risk assessment in place.

It is not clear why the risk assessment was not produced by the company in the present case, but the decision highlights the importance of leading evidence in this regard.

Concluding remarks

The commissioner in this case has undoubtedly made his views clear on workplace vaccination policies. However, the sweeping statements about vaccination policies in general should not be taken as the final pronouncement on the issue.

The decision to introduce a vaccination policy remains one that must be based on each employer’s individual circumstances. It is clear from the applicable regulations that any employer’s vaccination rule must be informed by its risk assessment and the particular hazards and working conditions that arise in its specific workplace. These risks, and the measures that can reasonably be taken to reduce them, must also be considered in light of the prevailing medical science.

Further, when it comes to the dismissal of an employee for failing or refusing to comply with an employer’s vaccination policy, employers will need to be able to show that the proper procedures were followed, both in introducing the policy and in exploring alternatives and reasonable accommodation measures. As is always the case, dismissal remains an act of last resort.

On 22 June 2022 the Minister of Health published a notice in the Government Gazette repealing Regulations 16A, 16B and 16C of the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions issued under the National Health Act on 4 May 2022. The repeal does away with the requirement to wear face masks in public, the limits on gatherings and restrictions on international travel to South Africa.

Face masks in public are out - but what about the workplace?

The repeal of these Regulations does however not affect the continued operation of the Hazardous Biological Agents Regulations (“the HBA Regulations”) published on 16 March 2022. Those regulations classify Covid-19 as a Group 3 Hazardous Biological Agent (HBA) and place several obligations on employers, including conducting a risk assessment and developing an action plan for the implementation of recommendations arising from the risk assessment.

The HBA Regulations must also be read with the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace which was published on 15 March 2022 and which came into effect upon the lapsing of the State of Disaster. The Code of Practice makes reference to a workplace plan (following a risk assessment) which may require employees to wear face masks.

The HBA Regulations were promulgated under the Occupational Health & Safety Act, while the Code of Practice was issued as a regulation to the Labour Relations Act. These documents must accordingly be interpreted in accordance with those Acts and, in particular, the obligations of employers arising therefrom.

Smoke at your own risk’

Labour Court finds against employee who was dismissed for consuming cannabis in their own home

On 1 June 2022, the Labour Court in the case between Bernadette Enever and Barloworld Equipment found that an employee’s dismissal from Barloworld for the repetitive use of cannabis in her private space, does not constitute unfair discrimination or an automatically unfair dismissal.

Background

Ms. Bernadette Enever (Employee) was employed by Barloworld Equipment since 2007 in the position of a category analyst, which was a desk job. According to her evidence, she had a history of severe constant migraine and anxiety. As a result, her general practitioner had prescribed a heavy dosage of medication for pain and anxiety that caused side effects.

After the decriminalisation of the personal consumption of cannabis in private spaces, the Employee gradually moved away from consuming pharmaceutical medication to using cannabis oil and smoking rolled cannabis as an alternative. The consumption of cannabis took place outside of working hours and in the privacy of the Employee’s home. She also consumed cannabis recreationally.

Barloworld has a zero-tolerance Alcohol and Substance Abuse Policy (Policy) due to the dangerous operations on its premises. The Employee was at all times aware of this policy. In terms of the Policy, employees are required to undergo medical tests in order to gain biometric access to Barloworld’s premises. If an employee tests positive for alcohol or a substance, they are declared unfit for work and directed to immediately leave the premises.

On 29 January 2020, the Employee was subjected to a medical test which was in the form of a urine test. The test came back positive for cannabis and she was asked to immediately leave the premises. At the time of the test, the Employee was not impaired or suspected of being impaired in the performance of her duties. The Employee was placed on a seven-day ‘cleaning up process’ until she was cleared by testing negative; however, she continued to consume cannabis and, because of this, was denied access to Barloworld’s premises.

As a result of her continuous use of cannabis and breaching the Policy, the Employee was charged and dismissed pursuant to a disciplinary hearing where she was found guilty. Despite Barloworld seeking a final written warning as a sanction, the chairperson of the hearing imposed a sanction of dismissal as a final written warning would serve no purpose - the Employee refused to stop using cannabis therefore she would be in perpetual contravention of the policy.

After her dismissal, the Employee referred an automatically unfair dismissal and unfair discrimination on arbitrary grounds dispute to the Labour Court in terms of which she alleged that Barloworld had unfairly discriminated against her by applying the Policy and as a result, her dismissal was automatically unfair.

The Court’s findings

The Court ultimately found that the Employee had wrongly elected to pursue a case of unfair discrimination where discrimination was not present. The Employee’s dismissal arose from normal misconduct which is a matter that falls out of the jurisdiction of the court to decide on a basis of first instance. Further, the Employee’s wilful breach amounts to misconduct and a sanction of dismissal was correct under the circumstances. In reaching its finding, the Court reasoned, among others, as follows:

There was no evidence from the Employee to suggest how Barloworld had treated her differently compared to other employees who had tested positive for a substance or cannabis. The Employee failed to lead persuasive evidence to substantiate her medical condition.

The Employee’s recreational use of cannabis diminished her grounds to justify contravening the Policy.

The Employee was aware of the Policy, which Barloworld applied consistently to all employees of all classes without exception. Therefore, the Policy does not differentiate among employees. The Court considered that cannabis is different when compared to alcohol; however, the Policy was applied consistently in respect of all employees.

The Court was of the view that, in light of Barloworld’s dangerous environment, it is entitled to discipline and dismiss any employee who uses cannabis or is under its influence whilst at work. The Employee failed to have a proper appreciation of the importance of the strict application of the Policy and wilfully committed misconduct. This was highlighted by her unequivocal refusal to stop consuming cannabis.

Concluding remarks

This decision illustrates, among others, the importance of referring unfair dismissal disputes to the correct forum.

In this case, and in our view, the employer’s conduct was correctly found not to constitute an act of unfair discrimination. Any employee who breaches the Policy is not permitted access to the workplace and this is applied consistently. An unfair discrimination referral, more so on an arbitrary ground where the onus shifts onto the complainant, would have been difficult to substantiate. In addition, the Employee failed to lead any evidence regarding the grounds she alleged she was being discriminated on and how she was being discriminated against, despite the Judge having incorrectly found that the burden of proof was that of Barloworld.

The setting of rules and implementing of policies in the workplace remains the prerogative of employers. However, they have a duty to ensure that such rules are reasonable and defendable if challenged. When one considers a remark by the Judge that ‘a zero tolerance approach may be unconstitutional as it will result in an employee not being able to use cannabis at home in their private time’, employers will have to consider carefully how similar policies are worded and implemented going forward. Seeking legal advice in this regard may be a viable option for employers.

Bowmans is a leading African law firm with offices in Kenya, Mauritius, South Africa, Tanzania, Uganda and Zambia and Alliance firms in Ethiopia and Nigeria.