As the working population faces pressure to return to work in person, as opposed to virtual work, and as the debate over whether or not to vaccinate continues, we’ll be facing arguments on the restructuring of disciplinary codes and workplace health protocols.
I’ve previously explained that certain employers might impose vaccination on their staff for many reasons. This doesn’t make vaccination compulsory, but it might lead to individual job losses. We know that Cosatu has warned employers against the “no jab, no job, policy”.
This debate will continue to be argued until we have a few Labour Court judgments and possibly a Constitutional Court judgment on this.
Cosatu specifically stated “we warn all opportunistic employers to stop victimising workers who refuse to vaccinate”. They went on to explain that in terms of section 12(2) of the Constitution, everyone has a right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction, security and control consent.
In essence, an employee has the right to decide on their own health and the equal treatment.
This includes whether or not to be vaccinated. However, one needs to understand that, in most jobs, people work with teams and sometimes even large groups.
An employee’s refusal to be vaccinated could pose a health threat to their colleagues. It has been said that the government has to intervene soon to ensure that certain workers are vaccinated, bearing in mind and taking into account medical, religious, bodily integrity, and any other factors reasonably raised by the employee.
We all understand that an employer has an enormous responsibility to ensure the staff are healthy.
The employer must prevent health risks associated with the workplace. It will be difficult to weigh up the health of the group against that of the individual.
It will also be difficult to weigh up pieces of legislation calling for the employer to eliminate all health risks against an individual worker’s right to freedom of choice and right to bodily integrity and privacy.
Many issues have arisen, such as whether an employee can be forced to disclose whether he or she has had the vaccine, and there might become a criminal market for forged vaccination certificates.
We heard the SA Human Rights Commission has received more than two dozen complaints from workers forced to vaccinate.
The rumour is rife in certain workplaces that if you don’t vaccinate, you will be dismissed. Even within the Department of Education, there appears to be such talk.
The Basic Education minister has clearly said that no one would be forced to be vaccinated.
Employers must understand that they have to engage in a balancing act between the rights and the health of the majority of staff against the individuals who refuse to vaccinate. The courts will have to evaluate all these factors and take into account the individual human rights against the rights of the broader group.
Other jurisdictions are making it more and more difficult for those who refuse to be vaccinated.
In many cases, people will probably not be admitted into conferences or large venues without showing proof of vaccination. Already we are seeing many countries closing their doors to those who can’t produce a vaccination certificate.
Once employers have been through the careful exercise of weighing up the operational requirements and their individual needs and beliefs, they will have to make a decision.
These decisions might lead to dismissal, which, in turn, will probably lead to claims of unfair dismissal. Employers are urged to ensure that all their deliberations are properly recorded so as to show fairness of the process if it is challenged in due course.
We are still in the early days of this exercise, and at this point a minority of South Africans have had the jab. It does appear that most of the trade unions are supporting the call for vaccination, but very carefully outline that it is their members’ choice.
I have been engaged in more than a dozen of these issues, and on each occasion we have managed to negotiate an acceptable departure or an acceptable alternative position.
As the law is unclear, it is recommended to employers to ensure that they talk their way through the issues until a reasonable accommodation can be found.
* Michael Bagraim is a labour lawyer. He can be contacted at [email protected].
** The views expressed here are not necessarily those of Independent Media.
Do you have something on your mind; or want to comment on the big stories of the day? We would love to hear from you. Please send your letters to [email protected].
All letters to be considered for publication, must contain full names, addresses and contact details (not for publication).