- SA's dispute resolution body has given two seemingly conflicting rulings on when companies can fire staff for ignoring vaccine mandates.
- The CCMA ruled in May that a medical company could legally fire an employee without severance pay for refusing to be vaccinated.
- But one month later, the commission ruled that the same company was wrong to fire another worker who refused to take the jab.
Can an employer fire a staff member for refusing to get vaccinated in South Africa?
According to a May ruling by the Commission for Conciliation, Mediation and Arbitration, the answer is yes.
But a different ruling by the same committee last month came to the opposite conclusion. Dismissing an employee for refusing a vaccine was found to be "substantively unfair" and "unconstitutional".
What is notable about the two rulings is that Baroque Medical, a Johannesburg-headquartered medical equipment supplier, was involved both times.
READ | Arbitration body slams medical group for firing employee who refused vaccination
In May, the arbitration body found that Baroque was justified in firing invoicing clerk Cecelia Bessick for refusing to get vaccinated after it imposed a strict vaccine mandate. Bessick, who was found to have acted "unreasonably" in not following the policy, did not get any severance pay.
A month later, the CCMA heard another case related to Baroque. This time it found in favour of Kgomotso Tshatshu, an inventory controller who also refused to get vaccinated, awarding her just under R300 000 in compensation.
The question of precedent
The two opposing judgments may appear puzzling, but according to Lauren Salt, a director in law firm ENSafrica's employment practice, the CCMA does not follow a rule of binding precedent.
"There can be awards involving the same employer and the same policy which differ in their conclusion," she told Fin24. "Each case will be based on the facts specific to that case and the evidence led during that specific arbitration, both of which can differ from case to case."
While all commissioners must follow the law, Salt notes they are not legally bound by the views or decisions of other commissioners, although they may take guidance from past decisions.
Similarly, "new" judgements don't overturn previous ones. "This award does not have any impact on any previous awards rendered by the CCMA on mandatory vaccination, including that relating to Cecilia Bessick," Salt explained.
The CMMA may have sided with Tshatshu in her case, but there is no guarantee that it will continue to find that vaccine mandates are unfair.
And while Commissioner Richard Byrne used the term "unconstitutional" in his ruling, this too carries little weight for other cases.
"The CCMA does not have the jurisdiction to declare a policy or, for that matter, any legislation unconstitutional," said Salt.
All CCMA decisions are subject to review by the Labour Court, and Salt thinks it likely that the questions of vaccination mandates will end up there.
"What is clear, though, is that the Labour Court will not determine that vaccine mandates are, as a general rule, unconstitutional or unfair. It will depend on the specific facts of each case."
Advice for businesses
Because CCMA rulings are not precedent-setting, Salt said businesses should not throw out their vaccine mandates as a result of the new ruling.
What is essential, she said, is that all employers who mandate vaccinations are able to justify why they have taken the decisions.
To do this, they need to show they have conducted risk assessments in line with workplace safety laws.
"This CCMA award should not deter them from implementing their policies, provided that they can show compliance with the Code of Practice," she said.
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