South Africa: COVID-19: Can Mandatory Vaccination Policies Be Arbitrary?

The Labour Court has handed down an interesting decision concerning an allegation of an automatically unfair dismissal claim arising from an employer's vaccination policy adopted during the COVID-19 epidemic. In Burton Maasdorp v University of the Free State, the Labour Court was called upon to decide whether or not an employer's mandatory vaccination policy unfairly discriminated against an employee who refused to be vaccinated.

We discuss the key takeaways and salient points of this case below.

Material facts

This matter arose in the context of an application made by Mr Maasdorp, a former employee of the University of the Free State ("UFS"), for the condonation of the late filing of his statement of claim in an alleged automatically unfair dismissal dispute. Briefly, the key facts of the matter are as follows:

• During the global COVID-19 pandemic in 2021, Mr Maasdorp was dismissed by the UFS for his failure to comply with its COVID-19 policy, which provided that he should be vaccinated in order to gain entry to his workplace.
• The policy also allowed the UFS employees to apply for an exemption from the requirement to be vaccinated on religious, medical or other grounds. Employees could also enter their workplace if they produced a negative test for COVID-19 not older than seven days.
• After the policy was adopted, UFS instructed Mr Maasdorp on numerous occasions to return to his workplace, subject to him complying with the policy. Mr Maasdorp, however, refused to be vaccinated, stating that the decision was based on his own medical research. However, he did not apply for an exemption from the policy.
• Consequently, Mr Maasdorp was dismissed. Aggrieved by his dismissal, he referred a dispute to the CCMA and argued that dismissal because of his vaccination status was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act, 1995 ("LRA") on the basis that his dismissal constituted unfair discrimination on an arbitrary ground. The CCMA found that it did not have jurisdiction to arbitrate the automatically unfair dismissal dispute, which had to be referred to the Labour Court.

Mr Maasdorp then referred his dispute to the Labour Court for adjudication. His referral to the court was 15 days late, and he sought condonation for the late referral of the dispute.

One of the factors taken into account in determining whether condonation for the late referral of dispute should be granted was the prospect of Mr Maasdorp being successful in his claim based on an allegation of automatically unfair dismissal. This meant that the court had to consider the merits of Mr Maasdorp's claim. This claim was not based on one of the prohibited grounds for discrimination specifically listed in section 187(1)(f) of the LRA, such as race, sex, gender, etc. He claimed that the ground for discrimination was an "arbitrary" ground". The court understood the word "arbitrary" to mean "the absence of reason or, at the very least, the absence of a justifiable reason". The court concluded that because the policy was based on the scientific consensus that existed at that time and because it took into account the employer's obligations in terms of the Occupational Health and Safety Act and directions issued in terms of the Disaster Management Act, the employer's decision was not arbitrary. On this basis, the court dismissed his application for condonation.

Key Takeaways

During and after the COVID-19 pandemic, many alleged unfair dismissal disputes relating to mandatory vaccinations were referred to the CCMA and/or Labour Court. The Maasdorp decision is one of the first decisions to come out of the Labour Court dealing with mandatory vaccinations.

While this judgment centered around whether Mr Maasdorp's late referral could be condoned on the facts before it, the court's remarks on the arbitrariness (or lack thereof) of UFS's policy, and in particular the consideration of the scientific basis of the policy, are significant for litigants to consider going forward. Interestingly, it did not adopt the generally accepted test for an arbitrary ground, namely that the ground must be one akin to the specifically listed grounds set in section 187 and must constitute an affront to human dignity or have an adverse effect with a comparably serious consequence.

Of interest is that the court, at least by implication, accepted that an employee may be dismissed on the grounds of misconduct for failing to comply with an employer's mandatory vaccination policy.

Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment Practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.