More companies might ditch implementing mandatory vaccination policies in favour of an admission policy after the Labour Court’s ruling that dismissed Solidarity’s application to have an admission policy implemented by engineering company Ernest Lowe declared unlawful.

A City Press report says in his ruling, Acting Judge Molatelo Makhura said the case was based on lawfulness.

‘Whether the admission policy is fair or reasonable is not an issue before me. The application is also not about whether the admission policy infringes the employee’s rights contained in the Constitution, nor is it about non-compliance with the Basic Conditions of Employment Act. The applicants made it clear that the application is not about whether the respondent is entitled to implement a mandatory vaccination policy. The applicants’ case is that the respondent is in breach of the employee’s contract of employment.’

Makhura ruled: ‘The applicants were unable to point to any specific term of the contract that was breached because of or by the adoption of the admission policy. Further, there was no provision of the contract of employment that the applicants alleged was unilaterally changed by the introduction of the admission policy.’

Makhura said the company admission policy, as introduced in the letters it sent out to its employees in December, made it clear it was not mandatory to get vaccinated.

‘It was clear from the company’s policy that, for employees to access the premises, they have two options. Firstly, employees may decide to vaccinate and produce proof thereof. However, for those who choose not to vaccinate, they are not left without any option. They must provide the Covid-19 test results every seven days. It is not the applicants’ case that the weekly Covid-19 PCR test is unreasonable. In any event, this case does not deal with the reasonableness or otherwise of the respondent’s conduct or the admission policy,’ Makhura said.

In response to the ruling, Cliffe Dekker Hofmeyr’s Thabang Rapuleng said it was a first of its kind, notes City Press. 

‘What we have seen thus far is the CCMA dealing with mandatory vaccination policies. This one just deals with admission into a company’s premises.’ Cowan-Harper-Madikizela Attorneys’ Neil Coetzer said the noose was tightening for employees.

‘We’ve had CCMA arbitrations saying that there’s nothing wrong with a mandatory vaccination policy. There’s also a case now that says you can be dismissed for refusing to be vaccinated. Ultimately, we have to see what the Constitutional Court says on the matter.’

Coetzer said the important thing was that all these previous judgments were fact-specific. ‘Not every employer will have an admission policy, not every employer will have gone through the same risk assessments, there may be flaws in their assessments, and so on.’

Solidarity’s Anton van der Bijl said it was still studying the judgment and ‘it looks like there’s a possibility of appeal’.

Full City Press report

Judgment