Could the adoption of COVID-19 vaccination policy constitute unfair discrimination based on an arbitrary reason?

Lee Masuku • October 20, 2023

In Maasdorp v University of the Free State (JS647/22) (12 October 2023), the Labour Court was called upon to consider the possible fairness of a dismissal arising from the implementation of a COVID-19 vaccination policy (“Policy”).  In this regard, the Applicant in the matter (“Mr Maasdorp”) claimed that his dismissal from the Respondent (“UFS”), resulting from his failure to comply with the Policy, was automatically unfair.  Ultimately, the Court’s consideration of Mr Maasdorp’s claim was within the context of it determining a condonation application for the late filing of the claim.  While the Court considered the other required factors in relation to Mr Maasdorp’s condonation application, for purposes of this article the focus will be on only two of those factors, namely the prospects of success and the importance of the case.


FACTS OF THE MATTER

The UFS adopted the Policy on 26 November 2021 and on its version, the Policy was introduced in line with its obligations in terms of the Occupational Health and Safety Act 85 of 1993 (“OHSA”) and the Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces of 11 June 2021 (“Consolidated Direction”).  In terms of the Policy, employees were required to be vaccinated against COVID-19 in order to gain access to the workplace.  However, the Policy also allowed employees who chose not to be vaccinated to either:


  • apply for an exemption from the application of the Policy on religious, medical or other grounds; or
  • provide a negative COVID-19 test not older than seven (7) days in order to gain access to the workplace.


Once the Policy had been adopted, UFS issued several instructions to Mr Maasdorp, who was employed in an administrative position, calling upon him to return to the workplace subject to him complying with the Policy.  While Mr Maasdorp refused to be vaccinated, he proffered no reasons for his refusal.  He further did not apply for an exemption from the Policy, nor did he produce negative COVID-19 tests as was also allowed in the Policy.  A disciplinary hearing was held in relation to Mr Maasdorp’s failure to comply with the UFS’ instruction that he return to work and, effectively, his non-compliance with the Policy.  Pursuant to this disciplinary hearing, Mr Maasdorp was dismissed from the UFS’ employ.  As a result, the Court had to consider whether, for purposes of determining the prospects of success of his automatically unfair dismissal claim, Mr Maasdorp’s dismissal through the application of the Policy was discriminatory.


THE LABOUR COURT’S DECISION

The Court noted that Mr Maasdorp’s claim was that his dismissal from the UFS’ employ was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995 (“LRA”), in that it was discriminatory on the arbitrary ground of his vaccination status.  It went on to confirm that discrimination is arbitrary where it takes place in “the absence of reason or, at the very least, the absence of a justifiable reason”.


The Court correctly noted that while it was possible that the Policy was “discriminatory” in the simplest, neutral sense of the word (given that it discriminated against UFS’ employees who were unvaccinated, not in possession of an exemption nor in possession of a negative COVID-19 test), the question of whether this was unfair discrimination and/or differentiation was a separate enquiry.


Therefore, on whether the Policy constituted discrimination against Mr Maasdorp on an arbitrary ground, the Court held as follows:


  • UFS’ claim in its Answering Affidavit that the implementation of the Policy was “guided by the scientific consensus regarding the value of vaccinations” was not disputed by Mr Maasdorp (in that he did not file a Replying Affidavit dealing with this averment).
  • With the above in mind, to base a workplace rule on scientific consensus can categorically not be arbitrary and instead, is the antithesis of arbitrariness.
  • There was no other reason that the Policy could be described as arbitrary.
  • Mr Maasdorp advanced an argument that the UFS did not comply with the OHSA (and its applicable regulations) and the Consolidated Direction when it failed to accommodate him in terms of the Policy.  However, in circumstances where this argument was not in the pleadings before the Court, it could not be considered for purposes of determining Mr Maasdorp’s condonation application.
  • Even though the fact that the issue of “accommodation” could not be considered for purposes of the condonation application, the Court remarked that the failure to accommodate would speak more to the fairness of the dismissal as opposed to the alleged arbitrary nature of the Policy.
  • Therefore, where it was undisputed in the pleadings before the Court that the Policy was consistent with the Consolidated Direction and that it was, consequently, undisputed that the Policy was sanction by law, it could not be described as being arbitrary.


In light of the above, the Court held that Mr Maasdorp had poor prospects of succeeding with his automatically unfair dismissal claim given that it could not be said that the Policy unfairly discriminated against him on an arbitrary ground.  While acknowledging the importance of matter (that is that it related to a dismissal related to the implementation of a COVID-19 vaccination policy), the Court found that this issue could not make up for Mr Maasdorp’s poor prospects of success.  Accordingly, the Court dismissed Mr Maasdorp’s condonation application for the late filing of his automatically unfair dismissal claim.


CONCLUDING REMARKS

The Labour Court’s finding in relation to Mr Maasdorp’s automatically dismissal claim is not entirely determinative of the approach our Courts are likely to take in relation to unfair dismissals claims related to the implementation of COVID-19 vaccination policies in terms of the Consolidated Direction.  Particularly where in this matter, the merits of Mr Maasdorp’s claim were only relevant to a determination of whether or not he ought to be granted condonation.  It remains possible that each case will be determined on the specific facts before the Court at the time.  The extent to which an employer complied with the Consolidated Direction and the processes provided for in the LRA, prior to dismissing an employee, are likely also to be taken into consideration in an unfair dismissal claim either before the Labour Court or another dispute resolution body.



Notwithstanding the above, what the Labour Court’s decision in this matter does is that it gives guidance regarding how an employer’s adoption of a COVID-19 vaccination policy in terms of the provisions of the Consolidated Direction is likely to be treated.  In other words, where an employer alleges that it relied on the Consolidated Direction and the prevailing “scientific consensus” in implementing a COVID-19 vaccination policy, it is unlikely that a Court would find that for purposes of section 187(1)(f) of the LRA, a dismissal arising therefrom was discriminatory and “arbitrary” given that the implementation of such a policy cannot be said to be in the absence of any reason, alternatively a justifiable reason.  Caution must still be adopted, however, in circumstances where the position may still be different if a party puts up a substantive argument against the reliance on the Consolidated Direction and “scientific consensus” for the adoption of a COVID-19 vaccination policy, which Mr Maasdorp had failed to do in this instance.


No information provided in this article may in any way be construed as legal advice.  Fact specific advice must be sought before any action is taken based on the information provided in this article, and consent must be obtained from Wilken Incorporated before the information in this article is reproduced in any way. Wilken Incorporated disclaims any responsibility for actions taken without proper consultation / consideration by it and/or information reproduced without its consent.


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