COVID Policy vs SA’s Constitution: Examining workplace vaccine mandates and the overreach of private institutions

Regardless of the vastly differing opinions held by South African citizens, one would be hard-pressed to find anyone that doesn’t agree that the COVID-19 policies introduced by government and the private sector were alarmingly unprecedented in scope and gravity. Suddenly, the implementation of mandatory vaccination policies in the workplace saw employees facing dismissal if they refused to get a vaccine that was both experimental and manufactured in what can only be described as questionable haste. This article by Mukundi Budeli, a contributing author for the Free Market Foundation, explores the case between Ms Kgomotso Tshatshu and Baroque Medical (Pty) Ltd, which resulted in the dismissal of Ms Tshatshu due to her refusal to get vaccinated and despite her provision of medical exemption certificates from two doctors. A CCMA Commissioner subsequently found the employer’s mandatory vaccination policy to be both unfair and unreasonable, underscoring the critical question as to whether institutions alongside government should have the final say in deciding the bodily integrity of employees and citizens – a gross overreach of power by private institutions, the extent of which was unheard of prior to COVID. However, over three years since South Africa was effectively grounded by lockdown – another COVID policy introduced without precedent – the issue of mandatory vaccination in the workplace still lingers despite glaring inconsistencies with our Constitution. This absence of any resolution on a policy which decimated the livelihoods of countless SA citizens leaves room for future transgressions of rights. – Nadya Swart

COVID mandated vaccines

The COVID-19 pandemic was disruptive as it destabilised global systems of governance and domestic institutions as the virus spread around the world. South Africa was not immune to this challenge, and the government, like many others, responded by instituting a COVID-19 policy framework. Similarly, the private sector also responded to this by implementing its own COVID-19 policies, such as institutional mandatory vaccination policies. But these have not gone without a challenge. This case discussion focuses on Tshatshu vs Baroque Medical (Pty) Ltd.

The case at hand is between Ms Kgomotso Tshatshu (Applicant) and Baroque Medical (Pty) Ltd (Respondent).

Baroque Medical implemented a mandatory COVID-19 vaccination policy which prescribed that all employees are to be vaccinated, proof of which should be furnished. Failure to comply with the policy could result in employment being terminated, and there were no alternatives to this policy. 

Read more: CCMA victory against mandatory vaccination policies in the workplace

Ms Tshatshu, who worked as a Senior Inventory Controller, refused to comply with the vaccination policy as she was hesitant, considering that she had previously had an adverse reaction to the influenza vaccine ten years prior. Baroque Medical requested proof of her vaccine injury, and Ms Tshatshu complied with the request twice by visiting two different doctors. However, Baroque Medical did not accept the medical notes as sufficient. Ms Tshatshu then approached a specialist doctor on COVID matters, but he refused to write a detailed report for Ms Tshatshu. 

Baroque Medical decided to retrench Ms Tshatshu without severance pay. Was the dismissal fair? The Commissioner in the CCMA matter had to consider the reasonableness of a mandatory vaccination policy implemented by the Respondent and whether the dismissal was substantively fair. 

The Commissioner analysed the Bill of Rights and made significant reference to section 9. Specifically, that everyone is equal before the law and that the state had not implemented legislation that required all citizens to be vaccinated. State institutions had also not implemented mandatory vaccination policies, as this would amount to unfair discrimination. Such discrimination would need to be proven fair in terms of subsection (5). The Commissioner found that this policy was unfair and unreasonable as the Respondent had not provided any evidence to demonstrate the effectiveness of such a policy in any other organisation. 

Read more: ‘Too much too late’ – mandatory vaccination

In addition, the Commissioner pointed out that the Consolidated Directive issued in terms of Regulation 4(10) of the Regulations issued under section 27(2) of the Disaster Management Act 57 of 2002 did not permit a “blanket mandatory vaccination policy”. The Commissioner also questioned the logic of such a policy since employees could still be at risk of contracting COVID while interacting with numerous people who are not subject to mandatory vaccination. 

The Commissioner also found fault with the Respondent’s argument that the Applicant was only entitled to severance pay if she had to provide a reasonable and substantiated medical certificate. The Commissioner held that regardless of whether the Applicant provided such a certificate, the Respondent would have dismissed her anyway. Therefore, the Respondent did not offer an alternative to the Applicant other than vaccination. 

The Commissioner’s award communicates a clear stance that a blanket mandatory vaccination policy has no place in the labour market. It is also worth noting that this award could still be taken on review by the Labour Court. 

Read more: ‘Companies that enforced vaccine mandates set themselves up to be the state’s fall guys’ – Dr Herman Edeling

In conclusion, this case highlights the importance of employers having to carefully consider the reasonableness of any mandatory vaccination policies they may wish to implement. Employers should also ensure they do not violate any applicable regulations or legislation in implementing such policies. Furthermore, it is crucial that employers provide alternative options to employees who may have valid medical reasons for refusing to be vaccinated. Moreover, this policy demonstrates how COVID-19 policy was made without consideration for real-world implications. To this day government has not answered for the reasoning behind their COVID-19 policy – which was often confusing and violated Human Rights.

In Mulderij and Goldrush Group, the case involves an employee who refused to comply with her employer’s mandatory vaccination policy and was dismissed on the grounds of permanent incapacity. The employee challenged the substantive fairness of her dismissal, but the Commissioner found that the employer had followed a fair process and that the employee’s refusal to be vaccinated had resulted in her permanent incapacity, which endangered herself and her colleagues. The case highlights the importance of balancing the employer’s obligation to provide a safe working environment with the employee’s rights to bodily and psychological integrity and the need for clear policies and processes regarding mandatory vaccination and exemption applications.  

Whereas in Kok and Ndaka Security and Services, it concerns an employee who was denied access to the workplace due to his refusal to be vaccinated and whether this amounted to an unfair labour practice. An employee who was denied access to the workplace due to his refusal to be vaccinated highlights the need for employers to balance the public interest in limiting the spread of COVID with the rights of individual employees. The Commissioner found that the employer’s decision was not unfair, considering the public interest in limiting the spread of COVID and the effectiveness of vaccination. However, the case highlights the need for employers to consider alternative measures for accommodating employees who refuse to be vaccinated and to ensure that any policies are in accordance with relevant legislation. Employers must balance the public interest with the rights of individual employees. 

These two cases were prior to the Tshatshu arbitration, and their judgements are important in the context of the ongoing COVID pandemic, where employers are increasingly considering mandatory vaccination policies to ensure a safe and healthy working environment. 

Overall, these two judgements underscore the importance of employers carefully considering the implications of mandatory vaccination policies in the workplace, balancing the public interest with the rights of individual employees, and ensuring compliance with relevant legislation. As the pandemic continues, these issues will likely remain at the forefront of workplace safety and employee rights considerations. The case in Tshatshu demonstrates that vaccination policies may not be absolute in combatting illnesses in the workplace and have the potential to undermine the Constitutional rights of employees in the workplace.

Furthermore, it has the potential to build on the fact that the government does not have absolute power in prescribing what its citizens can do in the event of disasters. COVID-19 was unprecedented, and no government nor private institutions have had any blueprint for dealing with employees. Tshatshu re-emphasises that despite workplaces having the right to create standards and codes of conduct, they should refrain from limiting the rights of citizens and affecting rights such as the right to equality. 

Read more: Vaccine mandates: evidence-based arguments against them is multiplying

The COVID-19 policy framework is not linear for both government and the private sector, as there needs to be a consideration of the rights that citizens and employees are entitled to. Thus, an appreciation for context is key when creating policy around health and safety, especially in the workplace. Furthermore, protecting rights and ensuring reasonableness is supreme.

COVID-19 policies in the workplace raise the question as to whether institutions alongside government should have the final say in deciding the bodily integrity of employees and citizens. The COVID-19 regulations by government, while somewhat effective in combatting the spread of the virus, were unprecedented. The decisions made by government often appeared to be made without rationality, such as the alcohol ban. COVID was a cautionary tale for the protection of the rights of citizens and the potential for their infringements by both the private and public sectors of life

Mukundi Budeli is a BA(Law) student at the University of Witwatersrand and a contributing author for the Free Market Foundation. The views expressed in the article are the author’s and not necessarily shared by the members of the Foundation.