Contents Page
47
COVID-19: THE DEVELOPING CASE LAW ON VACCINATIONS
A high-level summary of some of the
only to return to work once he had
most noteworthy cases that have come
been vaccinated against COVID-19;
before the Commission for Conciliation,
alternatively,
Mediation and Arbitration (CCMA), the
weekly COVID-19 test result. The CCMA
Labour Court (LC) and the High Court
dismissed Mr Kok’s claim and found
(HC) in South Africa over the past few
his suspension fair. In his reasoning,
months follows below.
the Commissioner found, inter alia,
could
submit
a
that the employer had complied with 21 January 2022, Theresa Mulderij
the requirements of the Consolidated
v Goldrush Group (CCMA) – Unfair
Direction on Occupational Health
dismissal
and
claim: Theresa Mulderij
Safety
Measures
in
Certain
(Ms M) was dismissed for incapacity
Workplaces (OHS Direction); and that
after Goldrush declined her COVID-19
the requirement to vaccinate is a
vaccine
reasonably practical step that every
The
Many lawyers, employers and employees have been waiting in anticipation for precedent on workplace vaccinations to be developed.
he
exemption
CCMA
found
application. the
dismissal
employer is required and compelled
substantively fair, reasoning that Ms M
to take in terms of the Occupational
was permanently incapacitated on the
Health and Safety Act, 1993. [See our
basis of her decision not to vaccinate.
full summary newsflash here.]
Ms M was required to engage with
2
external clients and internal colleagues
Members & 2 Others v SEESA (Pty) Ltd
by virtue of her position and could not
(LC) – Urgent application: Solidarity
be accommodated elsewhere in the
approached the Labour Court on
business.
an urgent basis on behalf of two of
February
2022,
Solidarity
obo
its members for an order declaring 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.
25 January 2022, Gideon J Kok v Ndaka
SEESA’s
Security and Services (CCMA) – Unfair
Premises Policy and any other related
labour practice claim: Gideon Kok (Mr
policies unlawful. Solidarity’s urgent
Kok) was suspended after he refused
application was struck off the roll for
to be vaccinated. He was instructed
lack of urgency.
COVID-19
Admission
to
