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Retrenching employees who refuse vaccination on the basis of operational requirements, and other options for employers

To date, over 35-million South Africans have been vaccinated. A contributing factor to this number is the mandatory vaccination policies implemented across companies, both big and small, throughout the country. Over the past few months, the Commission for Conciliation, Mediation and Arbitration (“CCMA”) has released a number of awards dealing with dismissals resulting from a refusal to vaccinate. When dealing with vaccination-related terminations, the question arises as to what process ought to be followed? As with any dismissal, an employer has only three options: the misconduct process, the incapacity process, or the operational requirements process.

In the most recent case arising from the CCMA, Bessick v Baroque Medical (Pty) Ltd, the chosen route was operational requirements.

Briefly, the facts in this case were as follows:

Cecilia Bessick (the “employee”) was employed as an invoicing clerk by Baroque Medical (Pty) Ltd (the “employer”), a company that supplies medical devices in the medical industry. The employer advised its entire staff complement of its mandatory vaccination policy. The basis of the policy was to ensure that staff members were not infected by COVID-19 so as to ensure business continuity through a reduction of COVID-19 related absenteeism.

During the vaccination objections process, the employee recorded that she was not willing to be vaccinated on the basis of the following three grounds:

  • medical – she was concerned that she has a blood disorder and that if she took the vaccine, it could “trigger” something. She provided no proof of the disorder;
  • personal – the vaccine had not been tested for a sufficiently long period of time when compared to vaccines for other medical conditions; and
  • religious – she had “sentiments” regarding the creation of a new world order and equated this with the “666 phenomenon”.

The employer took the view that the employee’s grounds of objection were unconvincing. The employer provided the employee with a letter requesting her to confirm whether she would take the vaccine, failing which, the consultation process as set out in the Labour Relations Act, 1995 (“LRA”) would be invoked.

The employer received no response from the employee and consequently issued her with a notice in terms of the LRA indicating that it contemplated retrenching her on the grounds of its operational requirements.

The employer recorded that this was of particular importance in the medical field where the protection of co-workers, customers and patients is paramount. A consultation process then took place. The employee continued to refuse to be vaccinated and was eventually dismissed on the grounds of its operational requirements. She was not paid a retrenchment benefit on the basis that the employee had unreasonably refused an alternative to dismissal, namely to be vaccinated.

She challenged the fairness of her dismissal in the CCMA.

During the course of the following arbitration process, the employee contended that she was not offered an alternative position. The employer contended that the alternatives that it had considered were:

  1. to allow employees to object to not being vaccinated and to continue working in the workplace;
  2. to provide for repeated COVID-19 testing; and
  3. to permit the employee to work from home.

However, all these alternatives were regarded as unsuitable. Ultimately, the CCMA found the employee’s dismissal to be fair, and interestingly, found that the employee was not entitled to a severance benefit because she had unreasonably rejected an alternative to dismissal, namely vaccination.

Navigating between misconduct, incapacity and operational requirements

In this matter, the employer followed a retrenchment and not a misconduct or incapacity process. The Commissioner, having assessed the evidence, concluded that the employer had made out a case in respect of the retrenchment process upon which it had embarked.

In reaching this finding, the Commissioner considered the meaning of the term “operational requirements”, which LRA defines in the following manner:

“operational requirements means requirements based on economical, technological, structural or similar needs of the employer."

The Commissioner found that the employer’s operational requirements fell within the meaning of the phrase “similar needs” of the employer. The Commissioner relied on the decision of the Labour Appeal Court in Khulani Fidelity Security Services (Pty) Ltd, where the LAC held that an agreement requiring certain employees to undergo polygraph tests “was designed for operational reasons, namely to ensure that people of proven integrity could be maintained in those positions.” The court held that passing such tests, therefore, constituted an operational requirement in respect of the affected employees.

The commissioner held that an employer’s “similar needs” must be determined with reference to the circumstances of each case. On the facts, the Commissioner was satisfied that the rationale for the imposition of a mandatory vaccination policy passed muster – the employer supplies medical products to a number of medical disciplines and engages with hospitals, medical and related practitioners. The Commissioner also found that the mandatory vaccination policy was imposed to safeguard the employer’s employees and to ensure that the employer’s operations are not severely affected by absenteeism (and even deaths) as a result of contracting COVID-19. On this basis, the Commissioner was satisfied that the operational requirements of the employer necessitated vaccination.

Comment

To rely on operational requirements, an employer must demonstrate the existence of the needs bearing a resemblance to economic, technological and structural needs.

What is clear from this award is that a dismissal based on operational requirements in the context of an employee’s refusal to be vaccinated cannot be discounted. Much will always depend on the facts of a particular case and there are likely very limited instances in which an employer could justify operational requirements as the appropriate approach. Employers must always interrogate the true reason for the termination.

An advantage of following the operational requirements route is that the dismissal is a “no fault” dismissal. An employer would only bear the onus of demonstrating that its operational requirements require that employees should be vaccinated because, for example, vaccination lessens the risk of absenteeism.

It may be easier for an employer to convince an arbitrator or court of its operational requirement. However, from a procedural perspective the operational requirements route is more onerous in that an employer has to follow the consultation process required in terms of the LRA. In addition, the employer may have to pay severance pay. On the other hand, the misconduct or incapacity route may be more expedient, depending on the circumstances and the number of employees involved. In addition, employers can avoid the possibility of having to pay severance pay.

Accordingly, the key takeaway is that there is nothing in law which precludes an employer from adopting the retrenchment process in the context of employees’ refusal to vaccinate, provided that such retrenchments are premised on a genuine operational requirement of the employer.

Employers are encouraged to seek legal advice, where necessary, to determine which of the three available termination routes would be applicable to the facts at hand. Vaccination-related terminations are not always clear cut and employers should always undertake a proper assessment of the specific facts before hastily choosing a process.

Dion Masher

Employment | Executive

dmasher@ENSafrica.com 

Lauren Salt

Employment | Executive

lsalt@ENSafrica.com 

Siphile Hlwatika

Employment | Associate

shlwatika@ENSafrica.com