Dismissing unvaccinated staff is violation of rights

Different views have recently been expressed on whether employees can be compelled to take the vaccine or risk being dismissed on the grounds of incapacity and/or operational requirements. Also, there are sectors in the public service whose collective agreements seem to suggest that employees may be dismissed on such grounds.

This is concerning. Firstly, President Cyril Ramaphosa has publicly said no person would be forced to take the vaccine, let alone employers forcing employees to vaccinate. Secondly, there is no national legislation that makes the vaccine mandatory for citizens and employees in particular.

Those who argue for the dismissal of employees on the grounds above seem to rely on the Direction of Occupational Health and Safety Act. It must be pointed out that the law is neither legislation nor subordinate legislation.

This does not, however, suggest that they have no legal status or are unenforceable.

However, they cannot take precedent over legislation, especially where their application will result in the infringement of rights. Employees have the right not to be unfairly dismissed (section 185 of the Labour Relations Act (LRA). In SA case law in Ahmed and Another v department of home affairs, the court held that directives do not have the effect of contradicting regulations within the legislation.

The dismissal of employees is regulated by the LRA. Grounds are incapacity, misconduct, and operational requirements. The dismissal of employees on the grounds that they have refused to be vaccinated will be unlawful as this will be a violation of rights.

Furthermore, this will constitute an automatically unfair dismissal as contemplated by section 187 of the LRA.

Employees have the right to privacy. To demand full disclosure of the reason for refusing to take a vaccine will most certainly encroach this right. While rights by their nature are not absolute, the justification would be a difficult task for employers.

Even if employers do not directly compel employees to vaccinate – the environment may be hostile to a degree where they may be faced with a choice to either capitulate to a demand or face dismissal. This may railroad such employees to leave. Such employees may leave with or without notice and subsequently file for constructive dismissal.

Some legal experts have been quoted saying that employers may rely on the National Health Act (NHA) to justify dismissal.

The only section that seems relevant is section 7 and it provides inter alia, that health services may not be given to a user without his informed consent unless it is authorised by law or court order to do so; or failure to do so will result in a serious risk to the public health. A vaccine is not a “health service” as contemplated by the NHA. As a result, the NHA has no relevance as regards mandatory vaccines.

On June 23, the high court of Meghalaya in India held that mandatory vaccination for shopkeepers, taxi drivers and vendors impinged on their right to partake in economic activities.

There is no legislation in SA that regulates or makes it compulsory for employees to take a vaccine. Most importantly, section 210 of the LRA provides that in case of the conflict between the LRA and any other legislation dealing with the same subject, unless it is in conflict with the constitution, the LRA will take precedence. The Direction of Occupational Health and Safety Act cannot take precedence over the LRA.