Refusal to vaccinate – dismissible offense?

Refusal to vaccinate – A recent arbitration award found that it was substantially fair to dismiss an employee who was opposed to compulsory vaccination in the workplace.

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.

Not yet a member?

If you are an employer it just makes sense to join the LWO. Get unlimited access to our legal department (specialised only in labour law) and make sure you comply with labour law. Did you know you can use labour law to protect your rights as the employer? All labour law advice and documentation are unlimited and free to all our members.

Join today and enjoy the peace of mind that goes with being a member.

How does membership work? What are the benefits? What does it cost? Get the answers here, or contact our offices at | 086 110 1828. Let’s discuss your business’s needs so we can recommend the best solution for you.

Share this on:

LWO Regsadviseur - LWO Legal Advisor

LWO Regsadviseur - LWO Legal Advisor

Leave a reply

Sign up for our Newsletter

Your information is safe and secure and will not be shared with any third party companies.

Attention all EMPLOYERS!

Subscribe today

to receive more information about the LWO and your

FREE Labour Law Audit Checklist

Tailored to your business needs

Your information is safe and secure and will not be shared with any third party companies.