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South Africa: Commission Rules Employee’s Dismissal Over Covid-19 Vaccination Refusal Fair

Cape Town — The Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that the dismissal of an employee who refused to be vaccinated against Covid-19 was fair, GroundUp reports. The ruling sets a precedent with regard to mandatory Covid-19 vaccine policies at workplaces.

Gauteng commissioner Lungile Matshaka, who made the ruling said the employee – Theresa Mulderij, a business and training officer at Goldrush Group – could be dismissed as she "refused to participate in the creation of a safe working environment".

Matshaka said that Mulderij initially attempted to get a medical exemption to remain employed. This was turned down after she was unable to receive assistance from a doctor willing to grant it. She then invoked her constitutional right to bodily integrity.

This application was turned down by the exemption committee. "The committee identified her as a high risk individual who interacts with colleagues daily whilst on duty in confined, uncontrollable spaces. This, according to the committee, put her at risk and exposes other colleagues to risk," the commissioner said. As a result, Mulderij lodged an internal appeal with the company. This was rejected in light of a memo written by Deputy Judge President Roland Sutherland to colleagues in which he stated:

"There has been, as yet, only mild protest that this (no vaccination no entry policy) violates freedom of choice … in my view this is the wrong question. The proper question is whether or not an individual is sufficiently civic minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of an individual."

Matshaka concluded by saying that after considering the versions of the parties, as well as commentary from Judge Sutherland, a ruling against Mulderij was found due to her refusal to participate in the creation of a safe working environment.

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