TRADE union Solidarity's chief executive, Dirk Hermann, said on Friday that the organisation would take to court employers who dismissed employees because of their choice not to be vaccinated.
Anton van der Bijl, head of legal matters for the organisation, said they knew of no cases at this stage where employees had been dismissed for refusing to be vaccinated, and a Department of Employment and Labour directive on the issue had only recently been published, on May 28.
The legal firm Cliffe Dekker Hofmeyr said last week that while the directive did permit mandatory workplace vaccination policies, the employer also had to take into account and accommodate refusals by employees to be vaccinated for health and constitutional rights reasons.
Hermann said Solidarity had obtained its own external legal opinion on the directive, which had confirmed that employees have a right to choose not to be vaccinated, and employers may not deprive them of this choice.
“Solidarity is of the opinion that there is certainty in the directive from the department that employees have the right to refuse the vaccine on the grounds of constitutional and bodily integrity reasons and that employers must do everything in their power to accommodate such employees,” Hermann said.
Cliffe Dekker Hofmeyr said employers needed to accommodate the refusing employees, either by providing the employee with counselling services, access to confer with a trade union, or a health and safety committee member.
For employees who refused to be vaccinated on medical grounds, the employer could refer the employee for further medical evaluation, with the consent of the employee. Employers could also, if possible, allow the employee to work from home, or the employer could suggest self-isolation in the workplace for the employee, or require the employee to wear an N95 mask in the workplace.
According to Solidarity it would be illegal for an employer to make vaccinations compulsory without considering individuals’ constitutional rights such as bodily integrity.
“The new directive from the Department of Labour’s point of departure is that vaccinations may not be unilaterally compulsory,” said Hermann.
“The directive also stipulates that, in highly exceptional circumstances and after proper analysis and consultation, employers can expect employees to be vaccinated in certain work areas. However, we cannot allow people to confuse the exception with the rule,” Hermann said.
He said the directive, however, determined that even in highly exceptional circumstances, employees still had a choice not to be vaccinated.
Motivations could include medical tests, religious reasons and the constitutional right to bodily integrity.
“It is the employer’s responsibility to find alternatives for employees who choose to refuse the vaccine. It is simply unlawful for an employer to unilaterally force an employee to be vaccinated, and one can even argue that it infringes on each individual’s right to bodily integrity.
“We will not hesitate to protect our members with the full power of the law, if employers make such drastic decisions,” said Hermann.
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