Mandatory vaccinations in the workplace: What now?

Werksmans Attorneys labour law specialist Sandile July finds no fault with Standard Bank’s dismissal actions, as compulsory vaccination was in line with the law at the time.

FIFI PETERS: Standard Bank has walked back on its requirement that all workers at the bank get vaccinated against the Covid-19 pandemic by April 4 or face dismissal. This action comes following pressure from Sasbo [The Finance Union], a union in the finance sector with over 73 000 members. Sasbo had vowed to challenge Standard Bank’s dismissal of at least 40 workers who did not comply with the vaccine policy.

But for more on mandatory vaccination in the workplace, now that all the Covid-19 restrictions have been lifted, I’m joined by Sandile July, director and labour law specialist at Werksmans Attorneys. Sandile, thanks so much for your time. One can’t ignore the timing of Standard Bank’s withdrawal on its vaccine policy, because it does come after Sasbo on Friday said it would take the bank on for dismissing the workers that chose not to vaccinate.

But, that said, Standard Bank has told media that the reason why it chose to repeal its vaccine mandate was because 95%, practically all its staff, were already vaccinated. What do you make of the turn of events at Standard Bank?

SANDILE JULY: I don’t find anything wrong, in my view, because you would recall this compulsory vaccination was in line with the regulations at the time, when there were regulations which required that when we reopened there must be a vaccination. We are no longer under those regulations and it would therefore make sense for them to relax [them], and also to relax their rules or their policy in light of the fact that their employees are vaccinated. To me it makes sense. I don’t find any controversy in that.

FIFI PETERS: Are you saying that Standard Bank’s decision at the time to dismiss at least 40 workers who did not comply with the vaccine policy was within their legal right?

SANDILE JULY: Yes. At the time, when there is a policy. Once that policy is gone, you can’t go back and say, what do we do with the people who were dismissed during the term of the policy? Thinking along these lines, people who were arrested when there were regulations, when they were in breach of the regulations, and now we no longer have those regulations because the conditions allowed that these regulations should be removed – we can’t then go back at the time when they were dismissed [and] there was a policy. I don’t know the details, of course, of the reason for the dismissal. I would imagine it was a failure to comply with a policy at the time when the policy was in place.

FIFI PETERS: So are you also saying that Sasbo’s signal of taking Standard Bank on for doing so, for dismissing these workers who are not vaccinated, wouldn’t really hold up in court because the regulation was in Standard Bank’s favour?

SANDILE JULY: Yes. At the time. I don’t know how the policy of Standard Bank came about, because [in] one of the cases that came before the CCMA, that policy was agreed upon with the trade union. So there was a collective agreement with the trade union and the employee because, where there are trade unions, any policy has to be agreed upon – that is if they have a collective agreement or a conditional agreement with the trade union. Most policies will have to be introduced in consultation with the union.

If then that policy was unilaterally imposed, then Standard Bank might have an issue to deal with. But if that policy was a policy which was introduced by Standard Bank as part of a collective agreement, a failure to comply with a policy is a possible offense, depending, of course, how serious the breach is of the policy.

FIFI PETERS: So, in a nutshell, if we assume that these workers were dismissed purely for not complying with Standard Bank’s mandatory vaccine policy, if we make just that assumption, then these workers have no recourse to getting their jobs back?

SANDILE JULY: I agree. They don’t.

FIFI PETERS: But things have moved. The lockdown restrictions have been lifted. It’s ‘business as usual – or unusual,’ as it were. So where does that leave mandatory vaccination in the workplace now?

SANDILE JULY: This is, again, going to be determined by each employer, which has its own policy based on its own operations – because we all know that the virus is still around us and it’ll be up to the employer and the employees employed in that company as to how they address the issue of the virus.

If the employer still feels that people must vaccinate and it becomes a policy, it is the policy.

I don’t think you are going to see where employers are saying ‘we no longer need to protect other employers or employees in the workplace,’ because any employer wants people who are not going to be sick. People don’t plan to be sick, but if you have an opportunity to prevent your employees from being sick, then you are allowed to introduce policies.

FIFI PETERS: So you are saying that an employer now, even though the lockdown restrictions have  been relaxed, who wants to take the position of continuing with mandatory vaccination, and who dismisses workers now for not doing so – you are saying that employer is also within its right?

SANDILE JULY: Within its right, yes. I say so because it depends, of course, again, how the policies are being introduced. In cases where there are trade unions, you will have to consult with the trade union.  I don’t find anything unusual about an employer trying to protect this very employee who does not want to be vaccinated. It is not done with malice.

The whole issue is about protecting you, the person who the employer wants to vaccinate and also protect the other employees. So I don’t find it unreasonable.

FIFI PETERS: But it’s in big contrast to the national policy on a vaccination. I mean, foreign travellers are allowed to come into this country without producing a vaccine certificate. So help us understand [why], where the entire government says that anyone can come into this country without having to show proof of vaccination, yet companies are saying that if they continue with the stance of mandatory vaccination and you can’t prove that, then you could face the door.

SANDILE JULY: Yes. But remember, as an employer you are controlling your confined space. You want your employees to be protected. All that I’m saying is it does not come from the position of ‘we want to punish you by vaccinating you’. Can we protect ourselves, all of us, from being sick? It’s not a punishment to vaccinate. So an employer can take any steps that seek to protect the employee at the workplace.

FIFI PETERS: Within your portfolio, as a labour-law specialist, are you dealing with such cases right now, similar to Standard Bank, whereby you have employees or even unions that don’t necessarily agree with your view right now?

SANDILE JULY: No, no. There’s no particular case…

FIFI PETERS: But are you expecting perhaps more cases like this, like what we’re talking about in terms of Standard Bank to come up now, just given that the restrictions have been lifted and perhaps, for some, the law might be a bit blurry as to whether mandatory vaccination still holds?

SANDILE JULY: I think there should be no confusion between what the government does and what the employer does at the workplace, because every employer would look at the operations. For instance now, in other companies, when you serve people, you are on the front desk. When they say you must put on a mask, it’s to protect you. We know that masks are not comfortable but there are still employers who insist, people who deal with other employees who come and need services. To insist that you must as an employee wear a mask is to protect you from these people who are not wearing a mask. It’s not punishment.

FIFI PETERS: But if I don’t want to wear a mask and I’m dismissed for not doing so, you are saying that the employer is not necessarily wrong.

SANDILE JULY: …Yes. If it’s the policy, it’s not wrong.

FIFI PETERS: Fascinating. Sandile, thanks so much for your time. A really fascinating perspective on how the law view[s] this right now. I think that a lot of us will be talking about it for a bit more, especially if more cases like this do come up. But thanks so much for helping us understand how the law sees it, which is perhaps the most important way to see it if you’re trying to challenge it legally.

That was Sandile July, director and labour law specialist at Werksmans Attorneys, just giving the position on mandatory vaccination as it still stands in the workplace.

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