Refusal to vaccinate – dismissible offense?
There are three recognised grounds for dismissal, namely: misconduct, operational requirements (retrenchments) and incapacity:
- For an employer to take disciplinary action against an employee, there must be a violation of a rule in the workplace. For example, when implementing a policy that regulates employees’ behaviour, the employer can take disciplinary action if the employee does not respect and comply with this policy.
- Secondly, an employer can retrench an employee due to operational requirements if there are no other alternatives, subject to section 189 of the Labour Relations Act.
- The third recognised ground for dismissal is incapacity. Here, for example, it is first considered whether the worker can be placed elsewhere and whether his job description cannot be adjusted.
Regarding compulsory Covid-19 vaccinations and the refusal to vaccinate, there is currently tension between two sets of legislation: the Constitution and the Occupational Health and Safety Act. The employee has the right to exercise his choice about bodily integrity, but the employer again has the right and obligation to ensure a safe working environment for employees as well as visitors. The employer is entitled to implement a compulsory Covid-19 vaccination policy, provided that it is fair and complies with the requirements and guidelines set by the Department of Health as well as the government.
If the employee is dismissed as a direct result of non-compliance with a Covid-19 vaccination policy, or due to his/her refusal to take the vaccine, the employee can refer an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Each of us has a constitutional right to exercise choices, especially when it comes to bodily integrity. The real question is whether individual rights to bodily integrity and religion may be curtailed in favour of public interest. This question will have to be decided on constitutional provisions.
The LWO is not prescriptive regarding members’ Covid-19 vaccination policy. We believe in fairness and advise members to do business within the guidelines set by labour legislation, especially with regards to the Occupational Health and Safety Act.
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