CCMA upholds suspension of ‘devout Christian’ who refused Covid-19 jab

A company’s requirement for staff to vaccinate against Covid-19 is a “reasonably practical step” to ensure employees’ safety as envisaged by the Occupational Health and Safety Act, the Commission for Conciliation, Mediation and Arbitration (CCMA) has found.

This is the second case involving mandatory Covid-19 vaccinations in the workplace to be heard by the CCMA.

In the latest decision, handed down on January 25, it ruled that a company’s decision to suspend Gideon Kok was not an unfair labour practice.

Kok, who was employed as a safety practitioner in August 2019, was suspended from duty on November 1 after his refusal to vaccinate. The employer is a private security company working with Sasol, which required a 100% vaccination rate for all employees, contractors and suppliers working at its workplace.

Jacqui Reed, an employment lawyer and senior associate at Herbert Smith Freehills, said: “The [CCMA’s] thorough analysis of whether the right to bodily integrity can be limited by the implementation of mandatory vaccination in the workplace is a useful tool for employers when assessing whether the limitation of an employee’s rights are reasonable and justifiable in an open and democratic society.”

Reed summarised the facts of the case:

Kok’s arguments 

• There is no legislation in place that compelled any employee to be vaccinated.
• An agreement compelling employees to vaccinate is contrary to the constitution, the National Health Act and the consolidated directives issued by the employment and labour minister.
• Section 12 of the constitution protects everyone’s right to freedom and security.
• Kok was recovering from Covid-19.
• He is a devout Christian.
• Security personnel are not essential services.
• There is no commercial rationale for vaccination.

Kok was presented with an alternative to vaccination, namely a weekly Covid-19 negative test result at his own cost. He declined this alternative.

Employer’s case

His employer said it had conducted three risk assessments during 2020 and 2021. A plan was developed and introduced and the leave policy amended to cater for the pandemic. Trade unions were engaged and agreement was reached.

Kok was identified as an employee who was required to be vaccinated because he shared an office with 10 employees and worked in close contact with other employees.

The company said contact tracing after a positive Covid-19 test result from Kok revealed he may have infected several colleagues, which required the business to close and all employees to isolate.

It was not able to accommodate Kok, as his duties are such that he cannot work from home or in isolation, said the company.

CCMA’s findings

• The decision of the employer to suspend the employee was not taken on a whim and due process was followed.
• Section 12 of the constitution is capable of limitation (several cases where the public interest outweighed the right to bodily and psychological integrity of individuals in certain instances was referred to).
• The requirement to vaccinate is a “reasonably practical step” in ensuring employees’ safety as envisaged by the Occupational Health and Safety Act.
• There was a clear commercial rationale for requiring vaccination, as the closure of the offices due to an outbreak was disastrous and the employer’s top client required 100% vaccination.

“It is clear from the evidence presented and recorded in the arbitration award that the employer ensured it conducted the entire exercise in a procedurally fair manner and ensured all employees, including Mr Kok, were given all the necessary opportunities both to express their views and make an informed decision about whether to vaccinate,” Reed said.

“This is undoubtedly one of many referrals to the CCMA, who will be required to grapple with the issue of mandatory vaccination policies in the workplace.”

TimesLIVE