Aug 10, 2022

Mawazo Writing Africa

Writing about the main

CCMA victory on vaccinations may be the start of a long court battle, lawyer fears

A recent ruling by the Commission on Conciliation, Mediation and Arbitration (CCMA) found a compulsory workplace Covid-19 vaccination policy to be unlawful and ordered an employee to be fired for refusing to receive the shot , was unfair and awarding her an annual salary as compensation.

But lawyer Vusi Masango, who represented Kgomotso Tshatshu against Baroque Medical, said on Monday he fear the CCMA victory could be the start of a long court battle that could hold up the payment of funds to his client.

“This is going to be an important matter. There’s a good chance it will be reviewed in the labor court,” he said.

Tshatshu had a side effect to a flu shot a decade ago and was resistant to taking Covid – 19 vaccines. This was in conflict with her company’s mandatory vaccination policy.

Senior CCMA Commissioner Richard Byrne stated: “An employer has no right to test a Covid-19 – Formulate a vaccination order. It is the prerogative of government.

Eeveryone, not just the employees of a particular company, is equal before the law. The state has not discriminated against anyone unfairly in relation to vaccination policy. No law has been enacted requiring that all workers or citizens be vaccinated.

“Given the equality clauses, the liberty and security of the person, the limitation of rights, the lack of adequacy of The rule, the government’s response to and the regulations it is enacting makes it absolutely clear that the right to enact legislation of general application regarding Covid-19 vaccination rests with the government.”

The Vaccination policy was therefore inappropriate.

“I note that the dismissal was materially unfair – indeed unconstitutional. The dismissal should not have taken place and the complainant effectively lost her job, which she had had for years, due to the employer’s violation,” reads the judgment.

It ordered the worker to be 12 should be paid for months. Compensation totaling approximately R279,000.

Masango told TimesLIVE it was a victory for its client and other employees facing similar situations.< /span >

“She was happy, but that’s probably just the beginning. It is not yet paid according to the award.”

He said if the judgment were reviewed, the award could be stayed pending the outcome.

His law firm represented her on a volunteer basis, and if the matter went to the labor court, it would be difficult for her to afford legal counsel, Masongo said.

“Where does [she] get money to advance this case?”

He said in his experience the Review will take one year.

The law firm ENS Africa took note of the CCMA ruling, which contrasted with a previous decision by another commissioner regarding the same employer and mandatory vaccination policy.

In the first CCMA dispute with Barock Medical, ENS Africa, said the CCMA found that the employer was entitled to cancel the mandatory vaccination on workplace as a mechanism to curb absenteeism related to Covid-19 and that failure to vaccinate resulted in essentially fair dismissal for operational requirements.

Tshatshu , who provided medical certificates of her health, questioned the implementation of the directive. She argued that meetings are mostly conducted remotely, she was given a laptop and worked alone in a boardroom, and social distancing and other protocols were in place. She saw no need for the vaccination mandate.

“A key takeaway from this award is that regardless of the reason for introducing a mandatory vaccination policy in the workplace, employers must ensure that they disputes over the adequacy of the policy can (and do) provide evidence to justify compulsory vaccination in the workplace.

“In this case, Baroque Medical should have provided evidence of their intolerance to absenteeism, the evidence regarding the impact of previous absences related to Covid-19 and/or the specialization of their work and their inability to fill posts in cases of absence.

< p>“Although this award certainly attention, it is not a foregone conclusion that other commissioners will follow.”

Comment on the recent judgment, the National Employers Asso ciation of SA said he had always taken the view that Directive Es and Codes dealing with Covid-19 in the workplace were unconstitutional and, apart from violating workers’ constitutional rights, posed serious risks of liability for employers who decided to implement a mandatory vaccination policy.

“We believe that the reasoning for this award is correct,” it said.

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