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Covid-19: Circumstances when employer can dismiss worker refusing to adhere to vaccination policy

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The issue of a vaccination policy in the office came under the spotlight when a candidate attorney doing articles at a law firm was fired after he refused to be vaccinated.

A man receives a Covid-19 vaccine. Picture: Ayanda Ndamane African News Agency (ANA)

WHILE there is no legislation making it mandatory for an employee to be vaccinated for Covid-19, there are circumstances in which an employer can dismiss a worker who refuses to adhere to vaccination policy at work.

The issue of a vaccination policy in the office came under the spotlight when a candidate attorney doing articles at a Western Cape law firm was fired after he refused to be vaccinated.

It was a win-win outcome for both the candidate attorney, Dale Dreyden, and his now former employee, Duncan Korabie Attorneys. Two commissioners of the CCMA found that Dreyden’s dismissal was substantially fair, but procedurally unfair.

It was fair in the sense that the head of the law firm, Duncan Korabe, had comorbidities and was medically vulnerable, which required his staff to vaccinate for his safety.

As the only workspace was an open-plan office, there was also no alternative way to accommodate Dreyden, whose duties compelled him to be at the office.

In finding that the dismissal was procedurally unfair, the CCMA held that the firm fell short on the level of consultation with Dreyden. He was simply told by WhatsApp message that his services had been terminated.

Compensation of one month’s pay as well as four weeks’ notice was ordered.

The commissioners who decided on the dispute, however, made it clear that each case must be determined according to its own merits.

Dreyden turned to the CCMA, contesting fairness, after he was dismissed at the end of August last year for refusing to be vaccinated. He stood his ground, and at the time of the CCMA hearing, was still unvaccinated.

While he could not exactly state his reasons for not taking the vaccine, he said there were various theories against it to which he subscribed.

Dreyden’s main argument was that there were no laws in place making vaccination mandatory in the workplace. He said certain companies only had directives in this regard, but these were not legally binding.

Korabe told the commission that shortly before the outbreak of Covid-19 in 2020, he fell ill and his medical condition had been compromised ever since. As he was the head of the law firm which provided for his and employee’s families, he had to take every precaution necessary to remain Covid-free.

The firm did work related to the Zondo Commission and had experienced cyber attacks as well as a break-in. Due to its vulnerability to security breaches, staff could not work from home.

The firm had an open plan layout and there was no scope for isolated work areas. The firm thus required all staff to be vaccinated.

Korabe said he made this clear from the start during meetings with his staff, as well as in internal communications. When the age category for the Covid-19 vaccines opened for Dreyden, Korabe accepted that he would get vaccinated.

When he refused, he was told towards the end of August that his contract had been terminated.

Dreyden said this was unfair, as there was no disciplinary hearing, nor was he given the opportunity to formally level his reasons against being vaccinated. He also argued that he could have been given alternative space to work from.

The CCMA said that while there was no legislation for mandatory vaccination, there was an official direction in place that provided for circumstances in which an employer could insist on vaccination.

But the procedural steps had to be taken before an employee was dismissed.

In this case it was found that Korabe’s insistence on his staff being vaccinated was reasonable, and trumped Dreyden’s right to not be vaccinated.

Pretoria News

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