There will be limited cases in which an employer can dismiss an employee who is not vaccinated, according to Law specialist at Werksmans Attorneys, Bradley Workman-Davies.
While an employer may fire an employee who refuses to be vaccinated if the employer has a mandatory vaccination programme, there are still workplace measures the employer has to take.
According to law experts, in June 2021, the Consolidated Covid-19 Occupational Health and Safety Direction in the Workplace (OHS Directive) were updated and contemplated, for the first time, that employers may consider whether mandatory vaccination may be appropriate for some or all its employees in the workplace based on the operational requirements of the employer.
“If the employee continues to refuse vaccination, the employer must try to accommodate the employee with workplace measures (social distancing, isolation, PPE) or in a different position that does not require the employee to be vaccinated,” Workman-Davies said.
According to Workman-Davies, an employee may be fired if the above measures are not met by the employer's operational requirement and the employee is required to be vaccinated.
“The employer may dismiss the employee through a retrenchment dismissal for the employer's operational requirements,” said Workman-Davies.
He said it was unlikely that the employee would be dismissed for misconduct (for example, failure to obey a lawful instruction) as the employee is legally entitled to refuse vaccination.
Webber Wentzel's knowledge lawyer Shane Johnson said: “Employers must approach the issue of dismissal of employees who refuse Covid-19 vaccination with caution. These are unchartered waters from an employment law perspective."
According to Johnson, employers need to evaluate each case on its own merits and obtain legal advice before dismissing any employee who refuses vaccination.
He said employees identified for mandatory vaccination must be notified of the following: their obligation to be vaccinated once the vaccine becomes available, their right to refuse to be vaccinated on constitutional or medical grounds:
“An employee who is dismissed for refusing vaccination has a right to challenge the fairness of their dismissal at the Commission for Conciliation, Mediation, and Arbitration or any relevant Bargaining Council,” said Webber Wentzel partner Dhevarsha Ramjettan.
Ramjettas said we caution employers against dismissing any employee who refuses vaccination.
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