The Commission for Conciliation, Mediation and Arbitration (CCMA) has issued its second decision relating to mandatory vaccination policies in the workplace and upheld the employer's decision to suspend an employee for refusing mandatory vaccination in the workplace, says law firm Herbert Smith Freehills employment lawyer and senior associate Jacqui Reed.

"It is clear from the evidence presented and recorded in the arbitration award that the employer, petrochemicals company Sasol, ensured that it conducted the entire exercise in a procedurally fair manner and ensured that all employees, including the complainant, were given all the necessary opportunities to express their views and make an informed decision about whether to vaccinate or not.

"The commissioner's thorough analysis of whether the right to bodily integrity can be limited by the implementation of a 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. However, this is undoubtedly just one of many referrals to the CCMA which will be required to grapple with the issue of mandatory vaccination policies in the workplace," she says.

The CCMA found that 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, with several cases where the public interest outweighed the right to bodily and psychological integrity of individuals in certain instances was referred to.

Additionally, the CCMA found that the requirement to vaccinate is "reasonably practical step" in ensuring employees' safety as envisaged by the Occupational Health and Safety Act, and there was a clear commercial rationale for requiring vaccination as the closure of the office due to an outbreak was disastrous.

The complainant was employed as a safety practitioner in August 2019, and was suspended from duty on November 1, 2021. following his refusal to vaccinate. His employer is a private security company, which entered into an agreement with Sasol that required a 100% vaccination rate for all employees, contractors and suppliers working at its workplace, says Reed.

The employer conducted three risk assessments during 2020 and 2021 in accordance with the directives. A plan was then developed and introduced, and leave policy amended to cater for the pandemic, while trade unions were also engaged and an agreement was reached, she notes.

The employer identified that the complainant was an employee who was required to be vaccinated because he shared an office with ten employees and worked in close contact with other employees.

Further, while it was possible to accommodate other employees, it was not able to accommodate the complainant as his duties are such that he cannot work from home or in isolation.

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