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The Media is awash with articles how the Commission for Conciliation Mediation and Arbitration (“CCMA”) has upheld the fairness of a dismissal of a woman for refusing to be vaccinated.

The facts briefly are that Ms Mulderij was found by a chairperson of a hearing to be permanently incapacitated based on her decision to not get vaccinated.  The chairperson concluded that it would be fair for her employer, the Goldrush Group, to dismiss her.

Ms Mulderij referred an alleged unfair dismissal dispute to the CCMA.  In refusing to be vaccinated, Ms Mulderij’s relied on her constitutional right to bodily integrity and contended that she felt extreme social pressure and emotional discomfort being compelled to decide between her livelihood and being vaccinated.

The Commissioner held that “…in my own sense of fairness, I can only conclude that [Ms Mulderij] is permanently incapacitated on the basis of her decision to not getting vaccinated and implication refusing to participate in the creation of a safe working environment.  I can therefore only conclude that [Ms Mulderij’s] dismissal was substantively fair”.

Employers should not rush to rely on this award as authority that the dismissals of employees who refuse to be vaccinated will be found to be fair.  The CCMA is not a court of law and its awards are not binding authority. It is likely that this matter may be taken on review to the Labour Court. Until such time as a Court has pronounced on the matter, employers should not place reliance on the award.

Read the full award at Goldrush vaccination dismissal award.

Should you require any more information on the subject, please contact our employment law partner Melanie Hart at melanie@bv-inc.co.za.