CCMA ruling ‘misguided’

VARIOUS organisations ranging from consumer and medical to the religious, as well as trade unions, believe that the Commission for Conciliation, Mediation and Arbitration (CCMA) missed the mark when it ruled against an employee fired for refusing to vaccinate.

SA Federation of Trade Unions (Saftu) spokesperson Trevor Shaku said the union would work with its unions to challenge the ruling.

He believes the judgment was arrived at by concentrating on the procedures the employer followed in notifying employees about vaccination and the failure of the employee to comply. “It would have been a fair judgment if this process was merely on another safety and health measure that does not infringe the worker’s bodily integrity. But because it overlooks the constitutional prescription, it’s not a fair judgment,” said Shaku.

In a joint statement, Cosatu, Fedusa and Nactu said they were extremely disappointed that the CCMA upheld the dismissal of the employee for refusing to be vaccinated. The CCMA delivered a judgment on January 21 that found that the dismissal of an employee who refused to comply with her employer’s mandatory vaccination was fair.

An arbitration award granted by commissioner Lungile Matshaka ruled that Theresa Mulderiji’s sacking by the Goldrush Group was fair.

The company voted in favour of vaccines in 2021. Mulderiji, who was employed as a business-related and training officer in March 2018, based her argument on her constitutional right to bodily integrity, as laid out in section 12(2), which was being impeded. The section provides that every person has the right to bodily and psychological integrity, including making decisions concerning reproduction, security in and control over their body, and not to be subjected to medical experiments without their consent.

She added that she felt extreme social pressure and emotional discomfort being subjected to deciding between her livelihood and accepting the vaccine under current conditions. She was referring to having to waive explicitly all avenues of recourse against the pharmaceutical companies who manufacture and supply the vaccines and the company in the case of temporary and permanent side effects.

In the judgment, Matshaka said: “In my own sense of fairness, I can only conclude that Mulderiji is permanently incapacitated on the basis of her decision not getting vaccinated and (by) implication refusing to participate in the creation of a safe working environment.” He added that he could therefore conclude that her dismissal was substantively fair.

Pandemic - Data Analytics (Panda) chairperson Nick Hudson said the judgment implemented the wrong assumptions about what the vaccines do and was “very flawed”. “This can be challenged at the Labour Court on appeal, and I hope that it does. It is an irrational judgment,” said Hudson.

He said this was proof that the government was under pressure to do whatever it took to increase the number of people who have been vaccinated.

“And it makes no sense because already 80% or more of the population has been infected and recovered. Therefore they already have a high level of immunity to Sars-Cov-2. The benefit of vaccinating those recovered individuals is negligible. They are already protected from severe diseases and death by virtue of having recovered,” Hudson added.

The non-profit HBR Foundation, which also represents those who were fired for refusing to be vaccinated, said it was not true that the unvaccinated were putting those vaccinated at risk.

“The purpose of vaccines is to protect the vaccinated and not the unvaccinated. The vaccinated do not live in a vacuum. They live among millions of South Africans who are yet to be vaccinated. They travel with them in taxis, buses and they meet at malls after working hours. And we understand that some of them might be getting some incentives for having a huge number of vaccinated people.

“This is just some ignorant employer who doesn’t want to be questioned about what is going on. I am not even sure if we should even call it a vaccine because scientifically it does not suit the definition of vaccination,” said the foundation’s spokesperson, Walter Masilo.

“Employers should be more worried about those who are not vaccinated and try to protect them, but they are worried about the vaccinated. They said the unvaccinated would put them in danger. How are they in danger because they are protected?” said Masilo.

He said it was clear that it was not about protecting employees and the workplace environment but ensuring that a high number of people were vaccinated.

“The fact that they are threatening us to be vaccinated shows that this has nothing to do with health. And, sadly, we have a lot of labour unions who are silent on this issue.

“Even the government’s contracts with these vaccine suppliers are highly confidential. Why don’t they want to disclose their agreements with these companies? And why don’t they want us to question?” asked Masilo, who added that the CCMA judgment was irrational and should be challenged in the Labour Court.

Human rights activist Schalk van der Merwe said: “What started as protection for employees and to make the workplace a safe place for employees has turned into gross human rights infringement against many. If the government wanted the protection of people, then certain measures could have been put in place that do not infringe people’s basic human rights.”

Christian group Watchers and Gatekeepers’ Pastor John Mosepele said the ruling against Mulderiji was used to scare those who didn’t want to take “this experimental” injection.

Sociotherapist and National Black Consumer Council secretary-general Dr Raynauld Russon issued a stern warning to employers. He said the matter was already before the Constitutional Court, where the Consumer Council wanted the court to urgently decide whether or not the implementation of mandatory vaccines was ultra vires (beyond the powers) and derogates non-derogable constitutional rights.

“It is advisable for employers to be patient because they may find themselves facing class action and liability cases.

“Any employee who is asked to take mandatory vaccination must ask the employer to sign a liability statement confirming that the employer will be responsible for any consequences of the vaccine,” Russon said.

“Employees who are dismissed must immediately contact their unions to take the matter on review at the Labour Court,” he added.