A now former invoicing clerk who worked for a company for 22 years was retrenched after she refused to be vaccinated against the Covid-19 virus during 2021.
She turned to the Cape Town Labour Court to have her retrenchment declared substantively unfair.
The court had to determine whether the employer, Baroque Medical, complied with the obligations imposed on it by the Labour Relations Act and the “Code of Good Practice: Managing Exposure to Covid in the Workplace.”
The employer implemented a mandatory vaccination policy in the workplace, which required all employees to be vaccinated. It indicated that refusal to be vaccinated could lead to dismissal due to the operational requirements of the employer.
The applicant refused to be vaccinated and cited a number of constitutional grounds as reasons for her refusal. These included personal, medical, and religious reasons. She referred to her constitutional rights, which included the freedom of religion.
Baroque, in turn, sent her a letter in which it responded that her objections were not accepted and that its vaccination policy is non-negotiable.
It made it clear that, while she had rights under the Constitution, so did the company have rights. The employee was further told that bodily integrity does not concern vaccinations and that her reference to the right of freedom of religion is unconvincing.
She was told that she was required to, within 72 hours of receiving the letter, confirm that she would be vaccinated.
The company said it was an operational requirement that everyone had to be vaccinated. It told the employee that it could not make any exceptions, else it would mean two sets of rules for the workers.
It also rejected a suggestion that those who did not want to be vaccinated should undergo regular tests, as being impractical.
The company informed the employee that she and others who refused to be vaccinated would face retrenchment without severance payment. The employee was subsequently retrenched.
The Labour Court determined that section 189 of the Act obligated the employer to assess any possible alternatives to retrenchment and to provide reasons as to why they were not viable. Furthermore, the code requires employers to, where necessary, reasonably accommodate employees who refuse to be vaccinated.
The court ultimately found that the actions of the employer did not comply with these obligations, as the mandatory policy was final, with no room for discussion, and the alternative of getting vaccinated to avoid retrenchment was no alternative at all.
Therefore, it said, the employer failed to consider any alternatives, as required by the Act, and failed to even attempt to accommodate the employee as required by the code.
The dismissal was found to have been unfair, and the employee was awarded 12 months’ compensation.
Pretoria News
zelda.venter@inl.co.za