Protesters congregate outside Groote Schuur Hospital in Cape Town on 21 August 2021 to protest against mandatory vaccination.
- It’s likely that the first cases about mandatory vaccine requirements will land in court soon, says an employment expert at law firm ENSAfrica.
- In dealing with an unvaccinated employee, employers could probably first see if there is an alternative arrangement available for the employee where he or she does not have to be vaccinated – like working from home.
- If that is not possible, then the employer could say it has to terminate the employment as the employee cannot contractually perform the requirements of his or her job.
South African employers may be able to terminate the employment of their unvaccinated staff on the grounds that the employee cannot contractually perform the requirements their jobs.
It’s likely that the first cases about the issue will start to land in court soon, as employees refuse to comply with mandatory vaccine requirements, says Irvin Lawrence, an employment expert at law firm ENSAfrica.
He presented on the latest developments in retrenchment law at the 24th Hybrid Annual National Conference of the South African Society for Labour Law (SASLAW) on Thursday.
“It is still new territory in terms of retrenchment law, but we have started seeing employers considering various ways of dealing with employee resistance to being vaccinated. This may include the possibility of resorting to retrenchment. I think it will become a big topic going forward and will raise some Constitutional challenges as some employees claim it is their right not to take a vaccine,” Lawrence told Fin24 after his presentation.
He found a New Zealand court case which dealt with the situation where an employee refused to be vaccinated. The employee then wanted a retrenchment package.
“Occupational health and safety measures and directives dictate that employers should do a risk assessment and determine whether a certain part of their workforce must be vaccinated to perform certain jobs, regardless of what their reasons are for not wanting to be vaccinated. The possibility of dismissing those employees then arises,” says Lawrence.
“One school of thought says such a dismissal must be by way of retrenchment, while another view is to treat it like a case where an employee has become incapacitated to do a specific job due to a disability sustained – like in the case where someone is injured.”
Although the New Zealand court did not decide on this aspect, Lawrence finds it telling that the court did, however, rule that the employee in question, whose job required vaccination, was not entitled to a retrenchment package upon her dismissal. This was because the job itself did not change but merely the requirements for the incumbent.
The employee simply chose not to be vaccinated and became “incapacitated”, forcing the employer to dismiss her.
“I think employers in this kind of situation will probably first see if there is an alternative job available for the employee where he needs not be vaccinated – like working from home. If that is not possible, then the employer will say it has to terminate the employment as the employee cannot contractually perform the requirements of his job,” says Lawrence.
He also raised two other retrenchment law developments to take note of. The one is where a South African court found that, due to the impact of Covid-19, a company’s retrenchment consultation and facilitation process did not need be suspended until lockdown levels eased because of the availability and access to virtual consultations.
The court also noted the risks of consulting with a large number of people physically at one time. Using virtual platforms were found to be in order and an acceptable part of the new order.
The other case is where a South African court ruled that an employee who had worked past retirement age, was legitimately entitled to a subsequent voluntary severance calculated from his original date of starting work at the company. Reaching retirement age did not interrupt the employee’s continuity of sercie and severance entitlement.