The arbitration award by the CCMA, which found the incapacity dismissal of a particular employee, due to her refusal to comply with the employer’s mandatory ‘vaccination’ policy, as fair, has been receiving a huge amount of attention and has been well publicised in the media.
Whilst the constitutionality of mandatory vaccinations has yet to be tested and I am of the opinion that this award will be the subject of further and more senior court proceedings, it will no doubt, influence many employers’ decision to dismiss employees who refuse to ‘vaccinate’.
We would however advise that each case and workplace must be judged on its own merits and each individual set of circumstance will play a massive role in any final determination which will be made.
In short, we confirm as follows
· A CCMA arbitration award does not create absolute precedent and is therefore not binding on other Commissioners, it may be referred to and used as a guide but I am of the belief that each commissioner will determine his or her own views and make an award accordingly.
· Only the substantive fairness of the dismissal was in dispute and procedural aspects which may or may not have been embarked upon was not decided upon.
· The employee was unrepresented and as such, I am of the view that perhaps complex and perhaps important factors may not have been adequately presented by the employee.
· The question as to whether mandatory ‘vaccinations’ are reasonable and lawful limitations of constitutional rights, remains unanswered. It is only the constitutional court who can answer this question and whilst this award provides a possible way forward and dependent on one’s views, it can be seen as a positive or negative step, there is still a long way to go before any form of legal certainty is achieved.
· There are still arguments for and against as to whether this is issue falls under the Occupational Health and Safety Act.
· The Supreme Court of the United States of America recently ruled that a mandatory ‘vaccination’ policy is not a workplace issue and can therefore not find application under the American Health and Safety Act. Our courts are yet to determine this issue but will no doubt take note of the award.
· Again, I strongly suggest that we evaluate each case on its merits and make an informed and risk appropriate decision when dealing with this thorny issue.
· This is but one award and I am sure we shall be updating you on many more awards, both for and against this issue and only time will provide us with clarity, or we hope so!!
As always, we are always available to assist and answer any questions you may have.
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UBUNTU RESOURCE MANAGEMENT
INFO@UBUNTURM.CO.ZA – 011 794 7928
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