Yesterday the Labour Court handed down the first judgment in which it upheld an employer’s policy in terms of which it denied an employee, who was unwilling to be vaccinated, from entering its premises without being fully vaccinated or producing a negative Covid-19 test result within the prior seven days.
On 6 December 2021, the employer informed its employees that in the new year, it would formalise a policy requiring that its employees play their part in providing a safe working environment, getting life back to normal and boosting the economy by being vaccinated.
In response, the Employee informed the employer that she was unwilling to be vaccinated but was willing to undergo a weekly Covid-19 test at the employer’s expense. The employer responded that it would not pay for the Covid-19 test and that the employee would not be allowed to enter its premises and the employer would apply the “no-work-no-pay” principle.
On 13 December 2021, the employer issued a further communication to its employees recording that in terms of its “site entry policy” (“the Policy”) admission to its premises would only be granted to employees who had been fully vaccinated or to those who produces a negative Covid-19 test result within the prior seven days. The employer also recorded that it would not contribute towards the cost of the Covid-19 test, nor would it allow employees to take paid time off for the purpose of being tested. Employees were informed that they were not forced to be vaccinated nor would they be forced to disclose their vaccination status.
Solidarity objected to the Policy on the basis that the employer had not consulted its employees before proposing to introduce the Policy and that it contravened the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces dated 11 June 2021 (“the Direction”).
On 4 January 2022, the employee reported for duty and was told to leave the premises because she was unvaccinated and failed to produce a negative Covid-19 test result.
Solidarity acting on behalf of their member, Ms van Rensburg, brought an urgent application seeking to declare the Policy unlawful, claiming that the Policy was a unilateral change to terms and conditions of employment and/or breached the employee’s contract of employment and contravened the Direction.
The employer referred to various provisions in the employee’s contract of employment which obliged that she comply with the various workplace policies, as amended from time to time. It also argued that the Policy did not contravene the Direction as vaccination was mandatory and employees had the option of producing a negative Covid-19 test result.
Solidarity claimed that the Policy amounted to a breach or unilateral change to the terms of the contract, the Labour Court found that Solidarity had not pinpointed any specific term of the contract which had been breached by the introduction and implementation of the Policy.
Alleged breach of the Direction
Further, the Labour Court found that the Policy did not constitute a mandatory vaccination policy and therefore did not contravene the Direction.
The Policy provided employees with a choice to either be vaccinated and produce proof thereof; alternatively, those who choose not to vaccinate could produce a weekly Covid-19 test result every seven days.
This judgment suggests an option to those employers who have not imposed a mandatory vaccination policy but have urged their workforce to be voluntarily vaccinated, on how to address the outlier employees who remain unwilling to be vaccinated.
Before employers implement this option, employees’ contracts of employment must be scrutinized to check whether the employer has reserved the right to unilaterally introduce workplace policies.
Please see the full LC Judgment
Should you require any more information, please contact Melanie Hart at firstname.lastname@example.org.