All of us recall the dark and uncertain days of the first few months of Covid-19 in South Africa.
Initially, our government, in its wisdom, called for a destructive lockdown – almost destroying the economy of South Africa. Millions of jobs were destroyed and families were economically brought to their knees.
After enormous pressure was brought to bear on the government and the various ministries trying to handle the pandemic, it was agreed that under certain circumstances, businesses could reopen and begin to function in an abnormal world.
It was at that time that the Minister of Employment and Labour, in conjunction with the Ministry of Health, tried to put together policies and directives for the return to work.
Consolidated directions on occupational health and safety measures in certain workplaces were issued on June 11, 2021.
The directive was published in terms of the National Disaster Regulations. South Africa had managed to procure vaccines and the government was slowly rolling out the vaccination of the population.
Many individuals for various reasons chose not to be vaccinated, as is their right. It must be remembered that at that stage, with the medical knowledge that existed at that time, the vaccination was seen as a silver bullet and was internationally respected in the medical fraternity as being effective.
It can subsequently be argued that the effect was not as we thought but the accepted protocol at that time was that the vaccine would very effectively save millions of lives.
After the Health and Labour Ministries issued their directives, it became necessary for employers to adhere and implement the directives as issued and endorsed by general scientific consensus.
It must be mentioned, as an aside, that our government brought out some completely illogical directives which could only be described as laughable.
At that time, employers implemented their own rules and regulations in line with the Occupational Health and Safety Act. It must be mentioned that the Occupational Health and Safety Act said, “every employer shall provide and maintain as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees”.
In line with this, employers rightly thought that the vaccination would be the correct method of ensuring health. Employers set out their own rules and regulations encouraging staff who were coming back to work to be vaccinated.
In a certain case, an employee of Free State University chose not to be vaccinated. This employee was given an opportunity to apply for an exemption on the basis of medical, religious or other grounds.
Furthermore, the employee could have also chosen to present the employer with a negative Covid19 test, not older than seven days, for each particular work week. The employee did not provide any reasons and nor did he take the test.
This employee was then stopped from entering the premises and eventually had a disciplinary enquiry and was dismissed. The employee chose to challenge this dismissal in the Labour Court, which recently gave the first finding of the Labour Court with regard to cases of this nature.
Interestingly, the court specifically stated that the refusal to allow the employee back on to the campus was discriminatory, but the discrimination was not illogical. In other words, the discrimination against this employee was fair.
The court reasoned that the discrimination was not on arbitrary grounds in that the country was facing a pandemic and the reasons for demanding the vaccination were sound. Eventually, the court said there was no unfair discrimination on arbitrary grounds against the employee and therefore the dismissal was justifiable.
The court took into account the medical knowledge that existed at the time and the various consolidated directions from the various government ministries. The employer was trying to curb the spread of Covid19 and did allow their employees to apply for exemptions under certain circumstances.
In this particular case, the employee chose not to take advantage of the exemption applications and also chose not to have the negative test results presented to the employer.
Obviously, this judgment had to be one which took into account the knowledge as it then existed when the alleged unfair discrimination took place. It might be argued, that with our current medical knowledge, a directive of this nature from an employer would not be sustainable. The Labour Court was obliged to take into account the regulations as existed at the time and the policies which were drafted in response to the injunctions from the Occupational Health and Safety Act.
* Michael Bagraim.
** The views expressed here are not necessarily those of Independent Media.
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