You can be retrenched with zero severance for refusing vaccination, CCMA rules

Business Insider SA
An anti-vaccine protest in Cape Town, on 14 August 2021. (Photo by Gallo Images/Brenton Geach)
An anti-vaccine protest in Cape Town, on 14 August 2021. (Photo by Gallo Images/Brenton Geach)

  • Under the right circumstances, you can be retrenched for refusing a Covid-19 vaccine without any severance pay.
  • In a recent case, the CCMA ruled that an employee had been offered a reasonable alternative to being retrenched: the same job, with a new operational requirement.
  • That requirement meant she had to be vaccinated.
  • Because she refused the new terms, it would be unfair to expect her company to pay out severance, the CCMA said.
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Long-standing precedents mean someone who refused a Covid-19 vaccine can be fairly retrenched without being paid any severance, the Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled.

In fact, it would not be fair to expect retrenchment pay, the CCMA said.

The recent ruling came in what the employment law practice of Cliffe Dekker Hofmeyr (CDH) called a case with "relatively simple" underpinning facts

Baroque Medical, a company that sells specialised medical products, implemented a policy of mandatory Covid-19 vaccinations. An employee refused to comply, citing "medical, personal and religious reasons". She did not substantiate the medical objection, and the CCMA rejected her personal and religious reasons.

The CCMA accepted the company's basis for demanding vaccinations from staff,  saying it dealt with hospitals and medical practitioners. 

"Accordingly, to safeguard its own employees and ensure that the operations of the employer are not severely affected by absences as a result of staff contracting the Covid-19 virus, and that those entities and individuals that had contact with staff members of the employer are adequately protected, it embarked on a risk assessment which made it apparent that a mandatory vaccination policy had to be imposed."

The employee who refused to be vaccinated did not challenge that policy, or the procedural fairness of her dismissal. But the process had not been substantially fair, she said, because alternatives to retrenchment were not properly considered.

Her company countered that it had considered letting her work from home, but she couldn't do her job without being at the office – and any other job in the company would still come with the requirement for vaccination.

An employee does not have to be offered a different post altogether before being retrenched, the CCMA said, but could by long-standing precedent be offered the same position under different conditions. 

In this case, it held, the company's operational circumstances changed. In response, it offered the employee her job with a change of conditions: she had to be vaccinated. She refused, without good reason. And that means she falls under retrenchment rules for those who unreasonably refuse alternative employment – and so are not entitled to severance pay.

In the Baroque case, the CCMA said, it would be grossly unfair to expect it to pay severance.

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