Knock, knock, knocking on the employer’s door: can employers deny access to the unvaccinated?

As decisions surrounding mandatory vaccination policies continue to emerge from the Council for Conciliation, Mediation and Arbitration (“CCMA”), employers are gaining more insight into how vaccination matters will be dealt with by the employment tribunal.

Following the recent award of the CCMA has released a further award on mandatory vaccinations, this time relating to the fairness of denying an unvaccinated employee access to the workplace.

In Kok v Ndaka Security and Services, the Applicant, Mr Kok, was employed at a private security company, Ndaka Security (Pty) Ltd as a safety practitioner. Ndaka rendered services to Sasol Ltd and used Sasol’s premises to run operations from an office. Due to Sasol’s mandatory vaccination requirement, Ndaka was prompted to implement its own vaccination policy. After conducting a risk assessment, Ndaka identified Mr Kok as an employee who was required to be vaccinated. Mr Kok refused to get vaccinated for a number of reasons, including his faith, and was unwilling to continue submitting to weekly COVID-19 tests as it would be for his own cost. As a result, Mr Kok’s access card to enter Sasol’s premises was blocked and he was asked to remain at his residence.

Mr Kok referred the matter to the CCMA, alleging that he was subjected to an unfair labour practice. The Commissioner was satisfied that Mr Kok’s inability to access the premises constituted a suspension in terms of section 186(2)(b) of the Labour Relations Act, 1995 (“LRA”). Thereafter, it had to be determined whether this was unfair and the both the process followed by Ndaka, as well as the reason for Mr Kok’s suspension, was analysed.

Mr Kok’s arguments against vaccination included his right to religious freedom, the experimental nature of the vaccine and the efficacy of his natural immunity against COVID-19. The Commissioner rejected these arguments and in doing so:

found that Mr Kok did not demonstrate that it is a Christian belief that a person should not be vaccinated; and
recognised the demonstrable success of the vaccination in limiting severe illness and transmission and the clear relation between the limitation of rights and its purpose.

Unfortunately, the Commissioner did not engage with the immediate cause for Mr Kok’s exclusion from the workplace and his refusal to submit to weekly testing as a result of the cost. Payment for testing is a topic on which employers eagerly await some definitive guidance from the courts.

Overall, the Commissioner was not convinced that Mr Kok was or is a victim of any unfairness in terms of his constitutional rights. Furthermore, other alternatives were not possible to accommodate Mr Kok, as it was impossible for him to work from home or in an isolated office due to the nature of his work.

It was concluded that the Applicant’s suspension was not unfair and, therefore, an unfair labour practice in terms of the LRA was not committed.

This award rubber stamps the imposition of mandatory vaccination in circumstances where it is underpinned by a sound risk assessment in compliance with the Consolidated Direction on Occupational Health and Safety in Certain Workplaces. While employers are able to deny access to those who are unvaccinated and who fail to follow alternative protocols, employers should carefully consider the issue of payment for tests, particularly if it is imposed as an accommodation for those with justifiable reasons for objecting to mandatory vaccinations.

Lauren Salt

Executive

lsalt@ENSafrica.com

+27 84 509 6494

Amy Pawson

Employment | Candidate Legal Practitioner

apawson@ENSafrica.com

+27 71 677 3090