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Independent school staff refusing to get vaccinated are in breach of employment contract

A subject receives a shot in the first-stage safety study clinical trial of a potential vaccine by Moderna for Covid-19. Picture: Ted S Warren/AP/African News Agency (ANA)

A subject receives a shot in the first-stage safety study clinical trial of a potential vaccine by Moderna for Covid-19. Picture: Ted S Warren/AP/African News Agency (ANA)

Published Aug 25, 2021


Some teachers employed at private schools have a dilemma. While it is their constitutional right to refuse to get the Covid-19 vaccination it is also their contractual obligation to reach operational requirements.

Last week, independent school Curro was reported to have threatened staffers to be vaccinated or face job loss.

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In a radio interview, the school’s CEO, Andries Greyling, said the school was forcing staff to get vaccinated to limit the impact of Covid-19.

He said: “Tracking stats and talking to the Department of Basic Education (DBE), the first two waves didn’t affect children at all but now the ages 15 and older are getting infected. Now I think it’s the right of us, as the employers, to safeguard parents and the children that we are teaching and that we are in contact with on a daily basis.”

According to the radio station’s online report, Greyling said the decision was made by the board of directors following legal advice.

Independent Schools Association of Southern Africa executive director Lebogang Montjane said the question of whether a person may be retrenched after refusing to get vaccinated is a complex matter and will, undoubtedly, be tested in the courts.

Montjane agreed that under the Constitution it is clear that individuals have certain rights and that it could be argued that these include the right to choose not to be vaccinated.

“A policy to retrench unvaccinated employees could possibly be justifiable in a school where a lot of people from different households are closely congregated for extended periods of time and the risk of infections, being closing of the school to the detriment of children. It may not be possible to accommodate educators who object to vaccinations with the option of remote working or isolation in the workplace. This might constitute a ground for dismissal for operational incapacity,” he said.

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While threats of retrenchment are not the case for public schools as most employees are represented by trade unions, Professional Educators Union general secretary Ben Machibi said independent schools staff were caught in a “catch-22”.

Machini said unlike in the public school system where staff are employed under the Education Employment Act, teachers in the private school sector had a different and more stringent contractual obligation.

“EThe employer has a right for employees to meet operation requirements. Learners have the right to be protected and that is the responsibility of the employer (school).

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“If you had underlying conditions you could work from home. Now employers offering protection by saying you should vaccinate. If you do not report you then fall under incapacity. That means you are dismissed on operational requirements,” said Machibi.