The CCMA has ruled that the dismissal of an unvaccinated employee on the basis of incapacity was fair.
The Company had a mandatory vaccination policy in place to create a safe working environment in terms of their responsibilities under Section 8 and 9 of the Occupational Health and Safety Act. The policy was created after various risk assessments were done and they consulted with the unions and employees over 3 months regarding the policy. The employee refused to get vaccinated on the basis of her constitutional right to bodily integrity and applied for exemption in terms of the mandatory vaccination policy. Her application was denied.
The Respondent’s witness testified that due to the nature of the Applicant’s duties, there were no other positions in which the Applicant could be placed as she interacted with site owners and employees, thus there was no alternative position for her where she would not be required to be vaccinated. The company then permanently incapacitated the employee. The employee brought the case to the CCMA.
The CCMA found the dismissal to be substantively fair.
Commissioner Matshaka stated, "In my own sense of fairness, I can only conclude that the Applicant is permanently incapacitated on the basis of her decision to not get vaccinated and, by implication, refusing to participate in the creation of a safe working environment."
Despite the outcome of this matter, we still caution employers who are looking to dismiss employees for not being vaccinated, given that this ruling may still be challenged in the Labour Court.
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