The Labour Relations Act provides in section 188 (1)(a)(i) that a dismissal is unfair if the employer fails to prove that the dismissal was for a fair reason following fair practice. Further, there are two parts to this provision one makes provision for substantive fairness of the dismissal and the other makes provision for the procedural fairness of the dismissal. In relation to fair reason, the dismissal can be based on conduct, capacity (incapacity), and operational requirements.
The Labour Relations Act does not define incapacity in its entirety however, the Code of Good Practice in Schedule 8 of the Act provides that there are two forms of incapacity namely: that of poor work performance, and that of ill health or injury. Further, incapacity due to poor work performance is usually based on the inability to perform your given tasks based on skills or the necessary qualities that are required to accomplish the task. In contrast, the second form of ill-health or injury refers to the employee’s capability to perform the required tasks and to what extent the employee can perform their duties.
The Commission for Conciliation, Mediation and Arbitration (hereafter ‘CCMA’) in the matter of Theresa Mulderij v Goldrush Group granted the award that the dismissal based on incapacity of Mrs Mulderij was, in fact, fair. The Arbitrator had to decide whether the dismissal of Mrs Mulderij was substantively fair based on incapacity by refusing to be vaccinated based on the mandatory vaccination policy of Goldrush Group, and if not to consider the Applicant’s request of either being reinstated or fully compensated.
The Arbitrator concluded that Mrs Mulderij is permanently incapacitated based on her decision to not get vaccinated and the refusal to participate in a safe working environment as her duties entail working with externals parties and internal employees daily.
Certain issues currently persist:
- An arbitration award is not binding and does not create precedent;
- The CCMA granted the award based on the substantive fairness of the dismissal which was in dispute and not on whether the dismissal was an unfair labour practice- in other words, the CCMA found the refusal of the employee to comply with the mandatory vaccination policy that was implemented in the workplace to be fair;
- The question related to whether mandatory vaccination is fair to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom remains unanswered; and
- Each case and operation of a particular workplace will be assessed on its Merit.
At present, the questions around the fairness of mandatory vaccinations are unclear as the award granted by the CCMA is not binding on other businesses. As more people return to work full-time from the office, this will have to be a question that is debated at length.
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Shervona Tia Marshall