Durban - Despite the Commission for Conciliation, Mediation and Arbitration (CCMA) ruling in favour of employers who insist their workers be vaccinated, according to the National Employers’ Association of South Africa (Neasa) these decisions are not set in stone.
Last week, IOL reported on at least two cases where anti-vax employees took their bosses to the CCMA after they were dismissed or suspended for failing to be vaccinated.
However, Neasa believes these cases are receiving unwarranted attention and that there is more to the reported cases.
"The fact remains that CCMA awards do not create precedent, are not binding and are subject to review by higher courts, which, in all probability, will set these decisions aside," said Neasa chief executive Gerhard Papenfus.
He explained that the CCMA has not and cannot determine the reasonableness of the infringement of constitutional rights. This determination falls within the purview of the courts and ultimately the Constitutional Court.
He said the CCMA has not and cannot determine whether the Occupational Health and Safety Act or the Disaster Management Act can serve as a law of general application for purposes of limiting constitutional rights.
"What is clear is that the Consolidated Coronavirus Covid-19 Direction on Occupational Health and Safety Measures in Certain Workplaces, which permits mandatory vaccinations in the workplace under site-specific circumstances, is not a law but, at best, a guideline which cannot be relied upon to infringe constitutional rights in terms of section 36 of the Constitution," Papenfus said.
He added that Covid-19 does not exist in isolation at workplaces.
"It is found everywhere, and people are exposed to it at all times. The question as to whether a workplace rule requiring vaccination even achieves the purpose it was designed for remains unanswered, and this is an important consideration when constitutional rights are limited," he said.
Neasa said the fact that the government has, to date, not implemented mandatory vaccination legislation is a telltale sign of the complexities surrounding this issue and the limitation of rights.
Papenfus said the government rather decided to pass the buck to employers to drive its vaccination initiative, while the government is exempted from any liability or pushback in this regard.
Neasa said it is difficult to imagine how the government will be able to implement mandatory vaccination at this stage, especially in light of the fact that isolation protocols for asymptomatic Covid-19-positive people have been scrapped, based on the rationale, according to the government, that in excess of 60% to 80% of South Africans have already contracted the virus and have immunity.
He added that this consideration will make it very difficult for employers to motivate that vaccinations are required to ensure a safe working environment, as Mother Nature has seemingly already done this job.
"The fact is, should employers 'force' employees by way of coercion or threat of dismissal to be vaccinated against their will, or dismiss those who refused to do so, they may well face class action lawsuits or liability claims down the road, should the courts determine that their actions were unlawful and unconstitutional," Papenfus said.
Employers should be wary of placing their trust in CCMA awards, which may not stand the test of time, and should rather adopt a wait-and-see approach until the courts have finally determined the issue.
IOL