The World Health Organization has estimated that as at the 20 th June 2022, only 33.79% of the South African population has been fully vaccinated against the corona virus 1 . The low immunisation rate can be attributed to the concerns that many South Africans have expressed regarding the side effects and effectiveness of the vaccinations. As South Africans we enjoy the constitutional right to bodily integrity 2 which encompasses freedom of autonomy regarding our health and body.
Whilst the decision to get vaccinated rests with an individual, there has been a growing practice of mandatory covid-19 vaccination policies and access policies being implemented in the workplace. Employers have reasoned that this practice stems from the Occupational Health and Safety Act 3 , which places a duty on them to provide a safe working environment for employees. This article seeks to explore the current legal position regarding the covid-19 vaccination policies and access policies in the workplace.
In the Commission of Conciliation Mediation and Arbitration [CCMA] matter of Theresa Mulderij and Goldrush Group 4 , the Commissioner was tasked to determine whether the dismissal of the applicant [Mulderij] was substantially fair based on incapacity. The respondent [Goldrush] had implemented a mandatory covid-19 vaccination policy, from which the applicant sought to be exempted. In coming to a decision, the commissioner made reference to a memorandum from Deputy Judge President of the Gauteng Division of the High Court, Judge Roland Sutherland in which the Honourable Judge pronounced that in instances of vaccination policies, the interest of the community must trump over the interest of an individual. The commissioner found the dismissal of the applicant to be substantially fair.
In the recent case of Solidarity obo Members and Johetta Van Rensburg vs Ernest Lowe 5 , the respondent [Ernest Lowe] had implemented an admission policy. Accordingly, employees either had to be fully vaccinated or had to produce negative covid-test results on a weekly basis to gain access to the premises. The second applicant [Ms Vans Rensburg], informed the respondent of her objection to being vaccinated and proposed that she would rather undergo weekly covid-19 testing at the respondent’s expense. The respondent advised the second applicant that it would not pay for her testing, and that she would not be granted access to the premises in the absence of the weekly negative covid results.
The applicants approached the Johannesburg Labour Court for an order declaring the admission policy to be unlawful and in breach of the second applicant’s employment contract. Acting Judge Makhura found that the respondent’s admission policy was in accordance with the provisions of the Organizational Health and Safety Act, to provide and maintain a safe working environment for its employees.
The overriding principle is the balancing of interests. Our Judges and Commissioners have adopted a utilitarian approach to covid-19 vaccination policies and access policies, that the outcome must result in the greater good for the most amount of people. To echo the Honourable Judge Ronald Sutherland’s sentiment, the interest of the community must trump over the interest of the individual 6 . It is conclusive that the current legal position favours vacation policies and admission policies in the workplace.