Unvaccinated employees could be fired for not taking the COVID-19 jab

Employees owe a duty of care to safeguard their colleagues (and others with whom they are in contact) from COVID-19 harm, writes the University of Cape Town’s (UCT) Pierre de Vos.

Last week the Commission for Conciliation, Mediation and Arbitration ruled that the dismissal of an employee for refusing to get vaccinated against COVID-19 – despite the employer’s adoption of a vaccine mandate policy requiring vaccination – was substantially fair, and rejected the employee’s request to be either reinstated or fully compensated.

While a CCMA award like this one should not be read as an indication of how courts may resolve constitutional challenges to the validity of specific vaccine mandates in future, the CCMA decision should worry unvaccinated employees who might have been made to believe that they could never lawfully be fired for refusing to get vaccinated.

The most important lesson I take from the CCMA arbitration award in the case of Theresa Mulderij v The Goldrush Group (case number GAJB 24054-21) is that employees owe a duty of care to safeguard their colleagues (and others with whom they are in contact) from COVID-19 harm. Another lesson is perhaps that doing “your own research”, and embracing widely circulating but misleading or outright false claims about the safety and efficacy of COVID-19 vaccines, can cost you your job.

The facts of this case are fairly straightforward. Ms Mulderij, who worked as a Business Related and Training Officer at the Goldrush Group, refused to be vaccinated against COVID-19, in contravention of the company’s vaccine mandate policy. She applied for an exemption as provided for in the company’s policy, “ostensibly” based on a claim to [the right to] bodily integrity” guaranteed in section 12(2) of the Bill of Rights. (I return below to the possible significance of the use of the term “ostensibly” by the CCMA.)

The company’s exemption committee considered and declined Ms Mulderij’s application for an exemption. It did so, according to the CCMA, because the company had “identified her as a high-risk individual” who interacted with colleagues daily “whilst on duty in confined, uncontrollable spaces”. She was therefore at risk and would potentially expose other colleagues to the risk of possible infection from COVID-19. It is not clear if this decision to refuse an exemption was influenced by the fact that Ms Mulderij had initially sought to obtain a medical (not a constitutional) exemption, but had abandoned this plan after doctors she consulted were unwilling to support this claim.

In terms of the relevant regulations providing for the adoption of COVID-19 vaccine mandates by employers, an employer has a duty reasonably to accommodate an employee who refuses to get vaccinated. But because of the nature of Ms Mulderij ’s work duties, which required her to interact with site owners as well as employees, it was not possible to accommodate her by moving her to another position. (The employer may well have had a duty to accommodate the employee, if their job did not require in-person interaction with others.)

The presiding officer at her subsequent disciplinary hearing concluded that Ms Mulderij was “permanently incapacitated based on her decision to not getting vaccinated and by implication her refusal to participate in the creation of a safe working environment”, and that this incapacity was permanent “as she had indicated that she had no intention of being vaccinated”.

This is significant as the Labour Relations Act recognises incapacity as a legitimate ground for dismissal. In this case incapacity arose because her refusal to get vaccinated made it impossible for her to do the job for which she was employed. As a consequence, she was dismissed. She then approached the CCMA, requesting it to order her employer, either to reinstate her or to fully compensate her for the dismissal. As I noted above, the CCMA dismissed her request and confirmed the fairness of her dismissal. While the reasons provided for this decision are not always a model of clarity, several aspects of the award are worth noting.

First, the commissioner noted that the decision on the fairness of the dismissal must be taken “in the light of available medical evidence and opinion”. Although this is not clearly stated in the award, this seemingly presented a significant problem for Ms Mulderij, as she advanced several justifications for her decision not to get vaccinated that were not, to put it mildly, supported by the available medical evidence and opinion. Put differently, Ms Mulderij’s decision not to get vaccinated seemed to be based on widely circulating but misleading, overstated, or outright false claims about the safety and efficacy of COVID-19 vaccines, and this seemingly counted against her.

For example, in her written submissions and oral testimony at the arbitration hearing she claimed that the World Health Organization (WHO) had concluded that the vaccine did “not stop the spread or contraction of the COVID-19 virus”, but only minimised the severity of symptoms and side-effects. She therefore disputed the premise of the vaccine mandate policy that the vaccine was “for the greater good or wellbeing of the people around us”, claiming it was “only for the good of the individual themselves” in terms of the effect of the COVID-19 virus. During cross-examination she also claimed that “there was no 100% proof that the vaccination is helping or not”.

These views did not sway the CCMA commissioner, presumably, because the overwhelming available medical evidence and opinion at the time – based on the results of various studies involving many thousands of people – had consistently found that while vaccines did not completely eliminate the risk of transmission or contraction of COVID-19, it significantly reduced the likelihood of this occurring (a view endorsed by the WHO). Her belief that getting vaccinated would not contribute in any way to the creation of a safe working environment was therefore, at best, misinformed.

While the CCMA award did not discuss the medical evidence on the efficacy of vaccines, the decision assumes that where vaccines reduce the risk of transmission or contraction of COVID-19 but do not completely eliminate such risk, it may justify the implementation of a vaccine mandate in the workplace, at least in certain contexts.

The emergence of the Omicron variant has obviously complicated matters, as the emerging medical evidence suggests that the available vaccines are far less effective at reducing the risk of transmission of this variant than of earlier variants. (One recent study suggests vaccine effectiveness against infection dropped from 80% against earlier variants to as low as 30% against Omicron). Whether this will impact on the assessment of the fairness of a dismissal of an employee who refuses to get vaccinated remains to be seen.

It probably did not help her case that Ms Mulderij claimed during her cross-examination that the government could not approve the roll-out of the medication which had “not been approved by the regulatory bodies”. As the relevant vaccines used in South Africa had all been given emergency approval by the regulatory bodies in terms of section 21 of the Medicines and Related Substance Act, Act 101 of 1965, and the Pfizer vaccine widely used in South Africa was given full approval by the US regulatory body (the FDA) in August last year, Ms Mulderij’s claim was obviously inaccurate and misleading.

Second, it is important to note that in this particular case the company had “from its drafting up to its implementation, followed all the crucial steps” prescribed by the regulations that govern the adoption of vaccine mandates by employers. Before implementing the policy, the company consulted widely “with various unions and all employees in the Group for a period of about three months”. These stakeholders had also confirmed that they had been provided with the policy, “that it was explained to them, and that they had read it”. The policy also provided for exemption for those who objected to being vaccinated on constitutional grounds. The outcome of the case may have been different had the employer failed to follow all these steps.

Third, in assessing whether the dismissal was fair, the commissioner accepted that employees did not have an absolute right to freedom of choice, when this choice would potentially endanger others. After noting the view of the employer that by implication Ms Mulderij was refusing “to participate in creation of a safe working environment of employees”, it indicated that its decision was guided in part by a memo Judge Roland Sutherland, Deputy Judge President of the Gauteng Division of the High Court, had sent to his colleagues. The relevant extract from this memo reads:

“There has been, as yet, only mild protest that this [adopting a no-vaccination-no-entry policy] violates freedom of choice… in my view this is the wrong question. The proper question is whether or not an individual is sufficiently civic minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community then the incontrovertible, legitimate interest of the community must trump the preferences of the individual.”

Based on all these factors, the CCMA concluded that Ms Mulderij was “permanently incapacitated on the basis of her decision to not getting vaccinated and [by] implication refusing to participate in the creation of a safe working environment”.

One wonders whether the CCMA might have come to the same conclusion if Ms Mulderij had not based her refusal to get vaccinated on misleading and false claims about the efficacy and safety of COVID-19 vaccines. It is for this reason, I would argue, that the commissioner expressed doubt about the sincerity of Ms Mulderij’s constitutional claim, which he described as “ostensibly based on a claim to [the right to] bodily integrity”. Perhaps her position might have been different if she had not based her decision on misleading and false beliefs about the efficacy and safety of COVID-19 vaccines. If this is correct, the small number of employees whose religious or other beliefs require them to refuse all medical treatment, including any kind of vaccination, might find a more sympathetic ear at the CCMA.

Pierre de Vos teaches Constitutional law at the University of Cape Town’s Faculty of Law, where he is head of the Department of Public Law. He writes a blog, entitled ‘Constitutionally Speaking’, in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.