Mandatory Vaccinations: Are There Grounds, Constitutionally, For Employees To Challenge Employers?

Jaco Swart, National Manager of NEASA, discusses the legality of mandatory vaccinations in the workplace, on eNews, 14 September 2021.


eNews: You get some employers that make it seem as if it is compulsory and they don’t give any consideration to your beliefs or why you don’t want the vaccine, they literally just fire you and that off course is not allowed. Are there grounds, constitutionally, for employees to challenge them?

Jaco Swart: It’s not only constitutionally, there are two issues: there’s the constitutional grounds, and we said a lot about it in that respect : rights may be limited off course, which is contained in the constitution, but that limitation must be reasonable and it must be through a law of general application, it must not be arbitrary. This directive seems to be quite arbitrary as it only identifies or targets a small number of employees, those who cannot be accommodated. The question is then: but how could they have been accommodated since March (2020) last year? What happened now that the employer cannot accommodate them without undue hardship? So that’s the one issue constitutionally speaking. Secondly, you are working within a framework of the labour relations act and employment equity, so there’s a procedure that you need to follow, and you need to prove that your dismissal is fair, both procedurally and substantively, and we believe it is going to be very difficult for an employer to show that it was fair to dismiss an employee because he cannot accommodate him, taken into account all the other measures that are available to accommodate such employees.

See our latest newsletters regarding vaccinations in the workplace:

Mandatory vaccinations in the workplace: Directive does not envisage a blanket approach

Mandatory vaccinations in the workplace: Freedom of choice
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