Dismissal of employee who refused to get vaccinated was fair, rules CCMA

Employee ‘refused to participate in the creation of a safe working environment’.
The Commission for Conciliation, Mediation and Arbitration has ruled that the dismissal of an employee who refused to be vaccinated was fair. Graphic: Lisa Nelson
  • The dismissal of an employee who refused to be vaccinated was fair, the Commission for Conciliation, Mediation and Arbitration has ruled.
  • The employee, a training officer, had applied for an exemption from company policy on vaccination but was turned down.
  • Commissioner Lungile Matshaka in Gauteng ruled that she had “refused to participate in the creation of a safe working environment”.

The Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that the dismissal of an employee for refusing to be vaccinated against Covid-19 was fair.

The commission ruled that she could be dismissed because she had “refused to participate in the creation of a safe working environment”.

The ruling, by Gauteng commissioner Lungile Matshaka, is the first to come to light on the issue of workplace mandatory vaccine policies.

Goldrush Group business and training officer Theresa Mulderij, was appealing against her dismissal for “incapacity”. She wanted to be either reinstated or fully compensated.

Read the ruling

At the hearing, company representatives explained the steps leading up to the adoption of its mandatory workplace vaccination policy.

They said consultations had been held with unions and employees over a three-month period. Staff had been given an overview of the benefits of vaccination. Specialists, including a doctor, traditional healer, virologist and a human rights commissioner had been made available to answer questions.

The policy included a provision for exemption.

Mulderij applied for exemption but was turned down.

According to Matshaka’s ruling, she had first attempted to get a medical exemption, but no doctor had been willing to assist her. She then relied on her constitutional right to bodily integrity.

This application was turned down by the exemption committee. “The committee identified her as a high risk individual who interacts with colleagues daily whilst on duty in confined, uncontrollable spaces. This, according to the committee, put her at risk and exposes other colleagues to risk,” the commissioner said.

Mulderij lodged an internal appeal.

The company rejected her appeal, taking into account a memo written by Deputy Judge President Roland Sutherland to colleagues in which he stated:

“There has been, as yet, only mild protest that this (no vaccination no entry policy) violates freedom of choice … in my view this is the wrong question. The proper question is whether or not an individual is sufficiently civic minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of an individual.”

The proper question is whether or not an individual is sufficiently civic minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm.

Commissioner Matshaka said he had listened carefully to what Mulderij had said at the CCMA hearing: that she had a constitutional right to bodily integrity; that she felt extreme social pressure and emotional discomfort about deciding between her livelihood and accepting the vaccine under current conditions; and that she did not trust the vaccine and had a personal fear as to what it might do to her.

She had said since the beginning of lockdown, she had strictly followed Covid protocols, both general protocols and those introduced by the company. To her knowledge she had not yet been infected or infected anyone else.

“She is aware that it has been confirmed by the World Health Organisation that the vaccine does not stop the spread or contraction of the virus, but only serves to minimise the severity of symptoms. She does not believe that this vaccine is for the greater good or wellbeing of people but only for the good of the individual themselves,” the commissioner said. [Vaccines reduce the risk of infection, the time one is symptomatic and consequently the risk of infecting others. – Editor]

He said the mandatory workplace vaccination policy, from its drafting up to its implementation, had followed all the crucial steps.

He said after considering the versions of the parties, and influenced by Judge Sutherland’s pronouncements, and his own sense of fairness, he could only conclude that Mulderij was “permanently incapacitated” on the basis of her decision not to get vaccinated and her refusal to participate in the creation of a safe working environment.

© 2022 GroundUp. This article was first published here.

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This is going to get very interesting rapidly.
Say you fire all your unvaccinated employees and allow unvaccinated customer will that be discriminatory and how will that pan out if the fired employees take them to court???
Those vaxxed companies will they insist on only vaccinated customers??
What about vaccinated producers??
What about the delivery drivers???

Buy popcorn – the movie is about to start.

Not the first time: “Mary Mallon (September 23, 1869 – November 11, 1938), commonly known as Typhoid Mary, was an Irish-born American cook believed to have infected 53 people with typhoid fever, three of whom died, and the first person in the United States identified as an asymptomatic carrier of the disease pathogen, Salmonella typhi. Because she persisted in working as a cook, by which she exposed others to the disease, she was twice forcibly quarantined by authorities, eventually for the final two decades of her life. Mallon died after a total of nearly 30 years in isolation.” Wikipedia.

So why should this opinionated person be allowed to potentially cause the death of others? There are a number of childhood vaccinations for polio, tuberculosis, rotavirus, diphtheria, Hepatitis B, measles,

I wonder if she or any of her offspring had any of these?

5,65 million deaths worldwide and close to 100,000 in SA but she knows best?

Your assumption is that this jab stops the spread of this disease, which it does not do? There is only information that it “limits’ the spread, yet you all want to decide what must be done to someone elses body to “limit” the spread? And then it has also been proven that the efficacy against Omicron is not verifiable.

And you still do not know what the long term (5 years plus) effect of this jab on peoples bodies will be. Are you all hipnotized??

I’m not sure where to begin to dispute your irrational, ill-informed logic, so I won’t bother.

This will indeed be very interesting to watch. I never thought i would see an ANC government introduce a form of apartheid albeit medical. Although not an explicit mandate yet from government, corporates are running ahead of it becoming mandated and ‘enforcing’ it as law now.

Her dismissal it could be argued is unconstitutional and violates her right of choice, thereby preventing her the right to make a living. I suspect this will come up many more times and will ultimately be challenged in various courts.

I suspect like the UK, the RSA gov will backdown and remove mandatory vaccines, or the vaccine passport as it is called. However, this is lazy of government, when the UK health secretary announced the scrapping of vaccine passports – he did say that corporations were free to make their own decisions – which in essence is letting the private companies do all the heavy lifting, on the exact same basis this women was denied freedom of choice – they will play the safe environment card.

There is no mention of natural immunity that she likely has – after 2 years 98% of the UK population is testing + for covid antibodies meaning at some stage they have been exposed. See this you tube link (i use youtube as they closely censor misinformation and take down videos that they believe to be true ) – the link below is for Dr John Campbell – a very well know doctor with 2m subscribers on this channel – he is very pro vaccine and has been throughout the pandemic – here he discusses in detail with links to CDC etc natural immunity.

https://www.youtube.com/watch?v=25-iJKPA1CA

It is easy to dismiss this and read off a list of deaths and statistics but we must get context to make informed decisions. RSA has 100,000 deaths over the last 2 years, or 50,000 per year but what is the breakdown of these deaths – very important to anyone to give informed consent. I use the UK links a lot because you can access government data from websites and also under the freedom of information act you can pretty much get all you need. The average age of covid death in the UK after 2 years is 82.6yrs old – in the US and EU it is very similar give or take a few months – these deaths are not in the daily workforce in any corporation. The profile is the same all over the world.

https://www.ons.gov.uk/aboutus/transparencyandgovernance/freedomofinformationfoi/deathsofthoseunder60fromcovid19withnocomorbiditiesandmortalityratesin2020

https://www.telegraph.co.uk/politics/2022/01/19/high-covid-death-rates-include-people-did-not-die-virus-admits/

This also must be considered in ways that corporations will abuse the ability to fire the unvaccinated – cost cutting to stay economically viable is essential. If you are going to fire one staff member in a country with one of the highest unemployment rates in the world – i think it should only be fair then that you must replace that employee with a vaccinated employee to prove that it was about a safe working environment and not the bottom line.

Here is one more youtube link for Dr John Campbell from yesterday. Again this is just for context and credibility, fact checked by the BBC. For those around the world wondering what happened in the UK in the last 2 weeks with literally every rule and regulation being dropped. It is because of data from the office for national statistics being released – ONS.GOV.UK

South Africa can be proud – last year when President Ramaphosa stood firm and held his line and belief in his own scientists and did not lock down for Omicron, in fact lifted restrictions to almost level 0 – when the rest of the world went into full lockdown. His stance was the first domino and since then it has been gathering momentum. He is referenced often as the reason Boris Johnson did not lockdown – how could he when we had live data daily from SA.

https://www.youtube.com/watch?v=bza1gAc8sOA

End of comments.

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