South Africa's labour department recently updated its guidelines for dealing with Covid-19 in the workplace, which now requires companies to declare whether they plan to make vaccinations compulsory.
At the National Economic Development and Labour Council (Nedlac), government and the private sector agreed that workers' refusal to take the Covid-19 vaccine should not justify a dismissal. But, last week, Business for South Africa (B4SA) told businesses that the revised guidance does not bar employers from firing workers who reject the vaccine.
"There is nothing contained in the Revised Occupational Health and Safety Direction which prohibits an employer from dismissing an employee who has been identified as high risk and who has refused to be vaccinated (and cannot be reasonably accommodated)," B4SA told its constituents.
"… but employers are encouraged, before considering such action, to seek legal advice given the complexities of such a dismissal," said B4SA.
Before considering a dismal, employers must have first conduct a risk assessment of their workplace to determine the category of employees which it requires to be vaccinated on a mandatory basis, Riola Kok, a professional support lawyer at law firm CDH's employment practice, said.
According to Kok, there are two main reasons you could get fired for refusing to be vaccinated if you are a high-risk employee and cannot be accommodated in the workplace.
After considering the employee's reasons for refusal, such as medical, religious, constitutional, and cultural, the employer is mandated to assess whether it is necessary for the employee in question to be inoculated and whether they fall under a high-risk category where vaccinations are required.
Dealing with dismissals on a case-by-case basis will determine the fairness of the termination and the employee's role, work environment, the alternatives they have or have not been provided, and their reasons for objection should be taken to account, Kok said.
Workers can be dismissed based on the operational requirements of the employer which would lead to standard retrenchment, Kok said.
"A dismissal for operational requirements, being a standard form retrenchment, [could mean] you no longer fit into the organogram because you refuse to be vaccinated where all the employees in this category are required to be vaccinated," Kok said.
The company could argue that a particular Covid-19 high-risk category, because of the vaccination requirement, has had to undergo a restructuring and disqualifies workers who refuse the vaccine, she said.
"In a situation where this is an employee that we've identified must be vaccinated due to their job role, the vaccine is available to be administered and there's a refusal and you require somebody in that position, then the employer would need to go the operational requirement route," she said.
Workers can also be dismissed for incapacity where an employee can simply no longer perform the tasks required of them, or because of medical reasons.
"It may also be an incapacity issue; it could be a medical incapacity or simply that you are unable to perform the work to the level that is required of you," Kok said.
"And there again the employee may need to be taken through the ordinary incapacity process, which includes a discussion with the employee to let them know where they are falling short of the standard," said Kok.
In this case, the company is required to assist the worker in improving in carrying out the functions of their job role.
"… and if there isn't any improvement, then you would have an incapacity hearing thereafter a dismissal," she said.
"Where you have employees, for example who don't really require the vaccine because of the nature of their job; they're not interacting with the public, they're not even interacting perhaps with other employees, because they sit in an office and they can self-isolate… there's simply no need, in relation to that employee, to make vaccinations mandatory," said Kok.
