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Woman retrenched for refusing Covid-19 vaccine wins her CCMA case - gets a year salary

EPA/JEAN-CHRISTOPHE BOTT

EPA/JEAN-CHRISTOPHE BOTT

Published Jul 4, 2022

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Durban: A Gauteng woman who was retrenched a year ago for not taking the Covid-19 vaccine, has won her case against her employer in the Commission for Conciliation, Mediation and Arbitration.

Commissioner Richard Byrne ruled that Kgomotso Tshatshu’s dismissal was substantively unfair and ordered that Baroque Medical compensate her a year’s salary of almost R300k by July 25.

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In her evidence, Tshatshu said she worked as a Senior Inventory Controller at Baroque Medical.

The company deals with the supply of medical equipment to hospitals.

Tshatshu, who was retrenched a year ago, said she opted not to receive a Covid-19 vaccine because of her fear of the vaccination as she had a negative response to a flu vaccine 10 years earlier.

However, her company had a mandatory vaccine policy in place.

She said in her line of work, she worked from an office, and she was not required to go to any hospitals where they were worried about catching infections.

Tshatshu said it was the job of clinical specialists and sales managers to go to hospitals to do the deliveries.

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She said she was asked to produce a doctor’s note, which she did, but the company wanted her to see a specialist.

However, the specialist refused to write a detailed report for Tshatshu because she was not sick at the time.

In their argument, Baroque Medical said that they had a strict and inflexible policy and dismissed four employees who refused to be vaccinated.

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The company said the aim of the policy was aimed at minimising the transmission of Covid-19 and improving the health of the employees.

It was also touted as an operational requirement in the sense that it would reduce the time employees spent away from work due to illness, which affects the productivity of the business.

The company said while it respected any person’s Constitutional Right not to be vaccinated, but if an employee, after consultation, refused to be vaccinated, a Section 189 process retrenchment process would follow.

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The reason Baroque Medical said it didn’t pay Tshatshu any severance pay after retrenching her was that she did not receive a reasonable doctor’s note.

However, commissioner Byrne found this statement “bizarre.”

“Baroque Medical’s case was that since they did not accept the medical reasons for the applicant's refusal to be vaccinated, that this was different to the event that the applicant provided a well-reasoned and credible reason not to be vaccinated.

“The outcome of this was that, in any event the applicant would be retrenched, but if she had good reason to object to vaccination, she would receive severance pay. Clearly, since the outcome was the same, severance pay would have been due. The lack of logic is astounding.”

Byrne found that the rule regarding vaccines was therefore unreasonable, citing that not one country, as far as he was aware, had proclaimed a compulsory vaccination law for its citizens.

In conclusion, Byrne said that Tshatshu did not wish to be reinstated.

“The dismissal should not have occurred, and the applicant had lost employment she has had for years due to, in effect, the employers’ breach and, in my view, 12 months compensation is warranted.”

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