The Covid-19 Vaccination and Severance Pay

The Basic Conditions of Employment Act provides that “an employer must pay an employee who is dismissed for reasons based on the employer’s operational requirements severance pay equal to at least one week’s remuneration for each completed year of continuous service with that employer.”[1] It further provides in section 4 (1) that operational requirements are based on the economic, technological, structural, or similar needs of an employer. An employee will not be entitled to severance pay if the employee refuses to accept the employer’s offer of alternative employment with the employer or any other employer.[2]

The matter before the Commission for Conciliation, Mediation, and Arbitration between Bessick v Baroque Medical (Pty) Ltd raised the issue of whether the applicant was unfairly retrenched and if the applicant was entitled to severance pay. The Applicant in this matter was 64 years of age and 18 months away from retirement when she was retrenched after working 22 years for the Respondent as an invoicing clerk. Further the Respondent operates an essential service by supplying medical devices to various medical disciplines in the medical industry. The Respondent implemented the COVID-19 vaccination policy on 22 July 2021 and the Applicant objected to the vaccination policy in writing on 30 July 2021 based on medical, personal, and religious reasons. Further, the Respondent advised that if the Applicant does not conform with the mandatory policy; the Applicant will be invoked with section 189 of the Labour Relations Act based on the fact that the vaccination policy being an operational requirement. Resultantly, the Applicant received a notice of termination and received her final payments at the end of October 2021.
 
It is submitted that section 189 of the Labour Relations Act grants employers the permission to dismiss employees based on operational requirements not being met such as the economic, technological, structural, or similar needs of the employer.

The CCMA found that the mandatory vaccination policy put in place by the employer has rationale as it safeguards the employees and ensures that operations of the employer are not severely affected by the absence or death of employees. The CCMA rejected the medical ground raised as the Applicant was unable to provide medical evidence for her contention. The CCMA rejected the Applicant’s contention of refusing to take the vaccine on personal grounds as the Applicant was unable to provide any merits. The CCMA also found that the Applicant’s contention about not being provided an option for an alternative position was substantiated by the employer in which the Applicant was required to work at the work premises.
 
For those reasons, the CCMA held that the mandatory vaccination policy was necessary, and the Applicant’s refusal thereof was her personal choice which the Respondent respected. Thus, the dismissal was substantively fair as the Respondent did not commit a wrongdoing by terminating the employment of the Applicant based on not meeting its operational requirements.
 
The CCMA further held that the Applicant had an option to vaccinate and retain her employment if she abided by the operational requirements of the Respondent. Further, the Applicant’s refusal to be vaccinated has no merits and her refusal was unreasonable. The CCMA is of the opine, based on the facts, that it would be grossly unfair to expect the Respondent to pay severance in the circumstances before the court although no alternative employment has been offered.
 
If you require any assistance contact our office to avoid disappointment.

 

Shervona Tia Marshall
Candidate Attorney
shervona@bbplaw.attorney