COVID-19: The developing case law on vaccinations

Many lawyers, employers and employees have been waiting in anticipation for precedent on workplace vaccinations to be developed.

While the issue is far from settled, there have been a number of interesting cases decided in the last four months that provide some insight into how our courts and tribunals are approaching employers’ vaccination requirements. A high-level summary of some of the most noteworthy cases that have come before the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour Court (LC) and the High Court (HC) in South Africa over the past few months follows below.

21 January 2022, Theresa Mulderij v Goldrush Group (CCMA) – Unfair dismissal claim: Theresa Mulderij (Ms M) was dismissed for incapacity after Goldrush declined her COVID-19 vaccine exemption application. The CCMA found the dismissal substantively fair, reasoning that Ms M was permanently incapacitated on the basis of her decision not to vaccinate.

Ms M was required to engage with external clients and internal colleagues by virtue of her position and could not be accommodated elsewhere in the business. only to return to work once he had been vaccinated against COVID-19; alternatively, he could submit a weekly COVID-19 test result. The CCMA dismissed Mr Kok’s claim and found his suspension fair. In his reasoning, the Commissioner found, inter alia, that the employer had complied with the requirements of the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (OHS Direction); and that the requirement to vaccinate is a reasonably practical step that every employer is required and compelled to take in terms of the Occupational Health and Safety Act, 1993. [See our full summary newsflash here.]

2 February 2022, Solidarity obo Members & 2 Others v SEESA (Pty) Ltd (LC) – Urgent application: Solidarity approached the Labour Court on an urgent basis on behalf of two of its members for an order declaring SEESA’s COVID-19 Admission to Premises Policy and any other related policies unlawful. Solidarity’s urgent application was struck off the roll for lack of urgency.

25 January 2022, Gideon J Kok v Ndaka Security and Services (CCMA) – Unfair labour practice claim: Gideon Kok (Mr Kok) was suspended after he refused to be vaccinated. He was instructed

11 February 2022, Free State for Choice (FS4C) v University of the Free State (UFS) (HC) – Urgent application: FS4C applied for urgent interim relief to suspend the operation of the UFS’s COVID-19 Regulations and Required Vaccination Policy, pending a review application in which it sought to review and set aside the policy. The urgent application was struck off the roll for lack of urgency. The review application was withdrawn.

23 February 2022, De Klerk v Chairman of the Board of Curro Holdings Ltd and Another (HC) – Urgent application: the employee, a grade 1 teacher at Curro Academy Sandown in Cape Town applied for an urgent interdict to bar Curro from applying its COVID-19 vaccination policy, pending a review application in which she sought to have the policy declared invalid, unlawful and unconstitutional. The High Court struck the urgent application from the roll for lack of urgency.

1 March 2022, Makhanda Against Mandates (MAM) v Rhodes University (HC) – Urgent application: MAM sought an interim interdict against the implementation of the vaccine mandate at Rhodes University. The matter was struck off the roll for lack of urgency.

7 March 2022, Dale Dreyden v Duncan Korabie Attorneys (CCMA) – Unfair dismissal claim: Dale Dreyden was dismissed for refusing to be vaccinated in line with the employer’s vaccination requirement, which was imposed based on its risk assessment. The dismissal was found to be substantively fair, but procedurally unfair, due to the employer’s failure to follow a proper pre-dismissal procedure. The CCMA found the employer’s vaccine requirement to be sound, considering, inter alia, that the employer, Mr Korabie, suffers from comorbidities.

14 March 2022, Solidarity obo Members & 1 Other v Ernest Lowe, A Division of Hudago Trading (Pty) Ltd (LC) – Urgent application: Solidarity sought an order declaring the employer’s admission policy (which permitted employees to enter the premises either if they were fully vaccinated or could produce a negative COVID-19 test) unlawful and in breach of the second applicant’s employment contract. The application was dismissed. In reaching its decision, the Court emphasised that the admission policy did not amount to a ‘mandatory vaccination policy’ and that the matter did not relate to the fairness or reasonableness of the admission policy or the second applicant’s Constitutional rights. The applicants failed to point to any specific term of the contract that was breached because of the adoption of the admission policy.

5 April 2022, Zaphia September v Inyosi Empowerment (CCMA) – Unfair dismissal: Zaphia September was dismissed for failing to vaccinate during her probation period, on the basis that vaccination had become a new competency and the employee was thus not competent for the position. The CCMA found the dismissal unfair. Whilst the employer had complied with the requirements of the OHS Direction and the employer’s right to implement the policy was not disputed, it did not afford the employee the same opportunity as its employees not on probation to comply with the requirement. There was no complaint about the employee’s work performance or suitability, yet her employment was terminated by relying on the probation period having come to an end. By the time the arbitration took place, the employer’s vaccination policy was not yet in force. Dismissal was accordingly premature.

There are sure to be many more cases making their way through our courts and tribunals in the time to come. Employers would do well to keep up to date with these decisions as the law in this area is developed.

This newsflash was prepared by Talita Laubscher, Chloë Loubser and Mbali Mnyandu and is the third in a series on the subject of vaccinations. If you have any questions, please contact a member of our South African Employment and Benefits Practice.

___________________________________________________________________ Bowmans is a leading African law firm with offices in Kenya, Mauritius, South Africa, Tanzania, Uganda and Zambia, Alliance firms in Ethiopia and Nigeria, special relationships with leading firms in Malawi and Mozambique, and a non-exclusive co-operation agreement with French international law firm Gide Loyret

What South Africa’s new Covid rules mean for masks at work

Thursday (5 May) marked the end of the transitional period under the Disaster Management Act Regulations. The question on many employers’ and employees’ minds today is: can they now do away with mask-wearing in the workplace?

The answer to this is not entirely clear, say legal experts at law firm Bowmans.

The transitional period provided for under the DMA Regulations was intended to afford the government an opportunity to finalise the much anticipated and highly contentious regulations under the National Health Act.

These regulations have not yet been finalised and, on 4 May 2022, the Minister of Health extended the period for public comment on the health regulations by a further three months, thus until 4 August 2022.

“However, to ensure that there is no gap in the legal framework when it comes to containing the spread of Covid-19, limited regulations under the National Health Act were published last night. These interim NHA regulations are largely similar to the transitional DMA Regulations that applied during the last month,” Bowmans said.

In particular, the interim NHA regulations provide:

• For the wearing of face masks when entering and being inside an

indoor public place or when using public transport;

• For capacity limitations and number restrictions on gatherings; and

“The interim NHA regulations allow the minister of health to assess the suitability of the above measures on an ongoing basis and to determine at any time that the measures are no longer necessary to contain the spread of Covid-19.

“In such a case, and upon notice in the government gazette, the measures will no longer apply. The minister may also reinstate such measures, if deemed necessary, by way of notice.

“Employers will recall that the DMA regulations specifically obliged them to require their employees to wear face masks when entering the employment premises and while performing their duties,” Bowmans said.

“Interestingly, the interim NHA regulations do not contain a similar provision. It may be arguable, therefore, that private employers who conduct their businesses from private premises are not required to enforce mask-wearing in the workplace, on the basis that such workplaces do not constitute ‘an indoor public place’. “Private employers conducting their businesses from an indoor public place would, however, be obliged to require face masks.”

Employees should not be too hasty in tossing their masks Even if it may be argued that the mask-wearing provisions do not apply to all workplaces, mask-wearing may still be a reasonably practicable control measure that employers elect to continue to enforce, Bowmans said.

This is to ensure that they comply with their ongoing obligation to provide and maintain a safe working environment.

“In terms of the Occupational Health and Safety Act, read with the Hazardous Biological Agents Regulations, employers must implement reasonably practicable measures to control the risk of exposure to the relevant hazardous biological agents in the workplace. The HBA regulations now expressly list the SARS-COV-2 virus as a hazardous biological agent.

“Under the HBA Regulations, employers are required to conduct and update a risk assessment pertaining to hazardous biological agents to identify, amongst other things, what reasonably practicable control measures can be taken. Where appropriate, these measures should include face or eye protection or other suitable protective equipment or clothing.”

Private employers conducting their businesses from an indoor public place would, however, be obliged to require face masks.”

The Code of Practice: Managing Exposure to SARSCOV-2 in the workplace similarly requires a risk assessment and plan, Bowmans said.

“This code expressly enables employers to impose measures to limit the spread of the virus through social distancing, the wearing of facecloth masks, barriers, hand washing, sanitisers and surface disinfectants. Employers would accordingly be entitled (and in some cases, obliged) to continue the requirement for face masks and other health and safety measures in the workplace.

“With the number of Covid-19 cases in the country on the rise again and the threat of the fifth wave looming, employers are encouraged to assess the risks and their health and safety protocols carefully. They should also clearly communicate the particular measures that would apply in their workplaces to their employees and third parties entering the workplace.”

Mandatory mask-wearing may continue

While the current legal position on mask-wearing at the workplace may not be entirely clear, the legal position may be clarified once the full regulations under the National Health Act are promulgated, Bowmans said.

“In draft form, these regulations require an employer to provide employees with cloth face masks or shields to cover their noses and mouths, which implies that masks must be worn in the workplace. “In the meantime, employers are advised not to throw caution to the wind and to think carefully before lifting mask requirements.”

Commentary by Talita Laubscher (partner) and Chloë Loubser (knowledge and learning lawyer) at Bowmans South Africa.