He further added that the Government has not made vaccinations compulsory and thus that argument does not carry water as no law has been passed to this effect. He further added that when applying law of general application, this mostly applies to State and its Citizens and not to companies and its employees. It was further added that Section 36 of the Bill of Rights would not apply considering the employer does not have to pass parliamentary process in order to have its policies approved and implemented like a normal act of parliament would.

The biggest issue the Respondent in the matter had, was to convince the Commissioner that it was reasonable for them to impose a rule or policy requiring mandatory vaccinations in the workplace, when it would be very easy to get Covid-19 in other settings like supermarkets, schools, churches etc, where there is no vaccine mandate to enter. The Commissioner further added that as far as his knowledge goes, no Government department has implemented such a policy and if Government has not enforced this on its own public servants, then Government does not expect same of employees in the private sector, working for private companies.

The Commissioner added that the reasonableness of this rule or policy is contested as it would be the great minority who implements same and the chance of transmission from other sources would be just as great as if it was not implemented at the Respondent. He further indicated that that the employees do not “live in a cocoon”. The employees of the Respondent would obviously have contact with the outside world and thus there would not be a great purpose for this policy as it would not significantly minimize the chance of transmission. The Respondent further failed to produce the Risk Assessment as well as why they are different from other companies in the private sector.

The Commissioner relied heavily on the Equality clause (Section 9 of the Bill of Rights) as well as the right to not be unfairly discriminated against in how he came to his ultimate conclusion. The Commissioner added certain other sections of the Constitution including section 7(2), 8(1), 12 and 36.

SA Labour Help in no way pretends to be medical experts or wishes to give advice on the matter, however agrees that yes, there are limitations on what a person can and cannot do should he/ she refuse to be vaccinated, like international travel, however that is a consequence that specific person must suffer due to his or her conscientious objection. It is further to be noted that because a person is vaccinated, it does not mean he or she cannot get Covid-19 or not act as a spreader, it just means that the chances of that person getting very ill is reduced and thus the reason why it is recommended by Government and the majority of the medical profession.

What is further to be noted is that there is a matter currently before the Highest Court in the land and we are waiting for the outcome of that matter, however as it currently stands, the CCMA Commissioners seems to be divided on the issue and thus creates risk going there as we will not be sure which way the specific Commissioner might rule on the particular case. It is always best to apply caution when it comes to this issue as it is more than just a normal policy implementation as it touches and deals with several other laws and rights and thus arguing same becomes an issue.

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