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Dear employer

The recent arbitration award by the CCMA, which found the incapacity dismissal of a particular employee, due to her refusal to comply with the employer’s mandatory ‘vaccination’ policy, as fair, has been circulating prodigiously.

This award will, no doubt, influence many employers’ decision to dismiss employees who refuse to ‘vaccinate’.

However, employers are cautioned that this award, for the following reasons, does not diminish the risk to employers to have an adverse finding made against them, should they decide to follow this route:

  • an arbitration award does not create precedent, and is therefore not binding on other Commissioners;
  • only the substantive fairness of the dismissal was in dispute and the laborious procedural requirements were not canvassed at all;
  • the employee was unrepresented and a lot of important, unanswered questions were not raised;
  • the question as to whether mandatory ‘vaccinations’ are reasonable and lawful limitations of constitutional rights, remains unanswered;
  • there is no certainty as to whether this type of policy may be introduced under the auspices of the Occupational Health and Safety Act, as Covid-19 is not a workplace safety issue, but a public health issue. The Supreme Court of the United States of America recently ruled that a mandatory ‘vaccination’ policy is not a workplace issue and can therefore not find application under the American Health and Safety Act. Our courts are yet to determine this issue; and
  • each individual case, and the operations of each particular workplace, will have to be assessed on its own merits. The award does not create a carte blanche for employers to do as they see fit.

Employers will, therefore, be well advised to approach this issue with extreme caution until our courts have provided legal certainty and clarity.

For more information:
NEASA Media Department