CCMA ruling sets precedent in mandatory vaccination policy case

IN A precedent-setting ruling, the Commission for Conciliation Mediation and Arbitration (CCMA) has found the retrenchment of an employee and non-payment of severance for refusing to comply with vaccination policy, fair.

In the arbitration award between Cecelia Bessick and Baroque Medical Pty (Ltd), the CCMA found that the employer’s decision to retrench the applicant due to her refusal to comply with the mandatory vaccination policy, was substantively and procedurally fair.

The CCMA found that the employee’s decision to refuse to adhere to the workplaces’ mandatory vaccination policy was unreasonable and therefore she was not entitled to severance pay.

“The commissioner found that the risk assessment conducted by the company, as well as the mandatory vaccination policy, although not challenged by the applicant, met the requirements set out in the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces.”

The CCMA statement stated the commissioner “considered the issue of ‘similar needs of an employer’ and stated that the employer must be able to establish that the dominant purpose of the retrenchment is the economic viability of the employer’s business.” .

The company supplies medical devices to third parties in the health-care industry and is classified as an essential service. In July 2021, it advised its staff that it would be imposing a compulsory Covid-19 vaccination policy. In terms of the policy, vaccination in the workplace was an operational requirement and the policy was a health and safety resolution.

The employee refused to comply with the policy on medical, personal, and religious grounds. She further declined to be vaccinated based on her constitutional right to bodily integrity.

The CCMA commissioner found that the employer had established a case and a clear business rationale for retrenching the employee.