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Wednesday, August 17, 2022

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Court finds employer was correct to lock out unvaccinated worker

A court has ruled in favour of a company which gave its employees the option to either get the Covid-19 vaccination or undergo a weekly test. Picture: File

A court has ruled in favour of a company which gave its employees the option to either get the Covid-19 vaccination or undergo a weekly test. Picture: File

Published Mar 17, 2022


Pretoria - The Labour Court has ruled in favour of a company which gave its employees the option to either get the Covid-19 jab or undergo a weekly test before being allowed to enter the workplace.

Johetta van Rensburg, who worked in the sales division of Hudaco Trading, with the help of trade union Solidarity, cited medical reasons and obtained a letter from her doctor stating she should be exempted from the Covid-19 vaccination.

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While not opposed to getting tested weekly as required by her employer, Van Rensburg said it was costly, but her employer refused to pay for it.

When she was refused entry into her workplace in January as per her employer’s guidelines that workers must either prove that they had been vaccinated, or produce a recent test proving that she was Covid-negative, she approached the court with the aid of her union.

The court was told that the employer imposed a mandatory vaccination policy on its workers and that this was in breach of Van Rensburg’s conditions of employment when she had joined the company.

The court, however, in turning down her application, found that Hudaco was not in breach of her contract, as it did not simply refuse her entry into the workplace. She had the option to either get the jab or take the weekly test.

The owner of the company issued a letter to all employees in December, stating that South Africa could not afford another lockdown, and Hudaco could not afford another lockdown either.

It urged its workers to get vaccinated and arranged transport to vaccination centres. The company also obtained the services of nurses to vaccinate employees at the office.

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The company said while it understood that vaccinated people could still contract Covid-19, the vaccine safeguarded those at work and their families against becoming seriously ill.

The company said it had an obligation to its workers and clients in this regard and could not rule out retrenchments if there was another lockdown.

It made it clear that vaccinations were not mandatory, but that those who chose not to be vaccinated had to produce weekly test results – at their cost – that they tested negative.

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It was communicated to the employees that from January 10, no one would be allowed into the premises without proof of either their vaccination certificates or negative tests.

Van Rensburg, who refused to be vaccinated, handed in a note from her doctor that she was exempted from the vaccination due to a medical condition. Her employer insisted on the opinion of another doctor, which she never delivered.

Her union meanwhile wrote numerous letters to the employer demanding her being exempted. Hudaco’s owner, however, stood his ground. When she was finally refused entry to her workplace, she and her union turned to court for an urgent order declaring her company’s policy unlawful.

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Judge M Makhura said the applicants knew as early as December 15, 2021 that the respondent’s position was that its admission policy did not constitute a mandatory vaccination policy, yet they persisted in court that it was a mandatory vaccination policy.

The court was unable to find that it was a mandatory vaccination policy, as the employees had an option to get the vaccination or produce test results.

The judge said the company was not in breach of any employment contract or the Consolidated Direction on Occupational Health and Safety Act.

The judge said the company acted in terms of the official directions to provide a safe working environment.

Pretoria News