Vaccinations, retrenchments & severance pay

Mandatory vaccinations and employment continue to cause legal problems across South Africa. The government maintains that vaccinations are not mandatory but many employers are implementing mandatory vaccination policies and admission policies to ensure that all employees are vaccinated to enter the workplace. A new scenario that has come up, deals with retrenchments conducted in terms of section 189 of the Labour Relations Act and whether an employee who refuses to vaccinate can be retrenched and if so, whether they would be entitled to severance pay. A recent CCMA case dealt with this exact scenario.

The Facts

The Employer, operating in healthcare, decided to implement a mandatory vaccination policy for its employees. The Employee refused to get vaccinated based on ‘medical, personal and religious reasons’. The issue was that the Employee did not provide any substantive reasons for her refusal. It was this lack of substance that led the Commissioner to find that her objections to the vaccination didn’t have any merit. As such, the Employee was retrenched.

The Arbitration

Prior to undergoing the retrenchment process, the Employer conducted a risk assessment as it was required to do so by the latest Code of Practice issued in terms of the LRA. Importantly, the Employee never challenged the validity of the risk assessment or the vaccination policy. At the CCMA, the Commissioner concluded that the Employer had concluded a legally compliant retrenchment process and since the Employer’s evidence regarding the retrenchment remained unchallenged, it was accepted by the Commissioner that the mandatory vaccination policy and compliance therewith was a justifiable operational requirement.

Alternatives to retrenchment

Whilst the procedural fairness of the retrenchment was not questioned, the substantive fairness of the process was challenged by the Employee in that the Employer did not properly consider alternatives to retrenchment.

The Employer argued that regardless of any alternative position that the Employee could have taken up, she would have been required to vaccinate. The Employer even considered allowing the Employee to work remotely, but ultimately, this option did not work for the company’s continued operations.

The Commissioner found that the consequence of the Employee’s refusal to vaccinate was that she could no longer perform her duties and that the Employer had no other option but to retrench her. Accordingly, her retrenchment was fair.

Severance pay

The final issue that needed to be addressed was whether the Employee was entitled to severance pay. In considering this issue, the Commissioner read section 41(2), together with section 41(4) of the Basic Conditions of Employment, that states that employees who unreasonably refuse to accept alternative offers of employment would not be entitled to receive severance pay.

In coming to his decision, the Commissioner was bolstered by previous case law that found that unreasonable refusal to accept an alternative would result in forfeiture of severance pay. He found that the requirement to be vaccinated was an operational requirement and the Employee could have vaccinated to remain employed. However, she chose not to vaccinate without providing a substantial reason for not doing so. This was unreasonable and it was found that it would be grossly unfair to expect the employer to pay severance pay in the circumstances.

Conclusion

It remains to be seen whether this matter will be taken to the Labour Court on review and whether the law regarding vaccinations and employment will be developed further. It is also important to note that CCMA decisions are not binding on other cases. It continues to be an interesting period in employment law as this issue rears its head once more.