Mandatory vaccination – there is no one size fits all

Lee Masuku • March 23, 2022

South Africa has been dealing with the COVID-19 pandemic for just under two years now.  However, in as much as employers have managed their businesses in a way suited to the prevailing lockdown restrictions at any given time, the “old normal”, being employees reporting for work in office, remains a necessity for many employers.  With employees returning to work, the implementation of mandatory vaccination policies has increasingly become the “elephant in the room”.


There are some who have raised their concerns with the lawfulness and/or constitutionality of  vaccine mandates.  However, to date our Courts have not made any specific pronouncements on the issue.  Despite this being the case, two recent decisions have assisted in giving guidance to employers, as well as highlighting the pitfalls, associated with the implementation of a mandatory vaccination policy.


The takeaways from this article and the authorities discussed herein are as follows:


  1. In implementing a vaccination policy, there is no one size fits all. 
  2. The procedure followed by an employer in the implementation of a vaccination policy will be closely scrutinised.  Employers must fully and properly consult with employees and/or their representatives and safety representatives in respect of all aspects of a vaccination policy.
  3. A policy relating to mandatory vaccination against COVID-19 should take into account the operational needs of an employer as determined by a risk assessment.  It is through this risk assessment that Employees who must be vaccinated are identified. 
  4. Admission or access policies do not constitute mandatory vaccination policies, particularly where an alternative to vaccination is catered for.


Steps must be taken to reasonably accommodate employees who refuse to be vaccinated, for any reason, and reasonable accommodation is mandatory in circumstances where employees have medically accepted contra-indications for vaccination.

Factors to consider in an unfair dismissal for a refusal to vaccinate

The first of these decisions is that of CCMA Commissioners Winnie Everett and Laurie Warwick (“the Commissioners”) in Dale Dreyden v Duncan Korabie Attorneys (WECT13114-21).  The importance of this decision is that it has provided insight into the factors that the CCMA is likely to take into account in determining the fairness of dismissals on account of an employee’s refusal to vaccinate.



In this matter, Mr Dreyden sought to have his dismissal from a law firm’s employ declared as both procedurally and substantively unfair.  Mr Dreyden alleged that his dismissal was on account of his “refusal to vaccinate for COVID-19”.  The managing director of the law firm explained that a mandatory vaccination policy had been implemented in the following circumstances:


  • Due to security breaches the firm had experienced in recent times and the nature of its business, it had become impractical for employees to work from home on a full-time basis.
  • He had a co-morbidity, Addison’s Disease, which put him at risk of severe illness should he contract COVID-19.
  • The size of the firm’s offices was such that there was no room therein to have a separate isolated area for unvaccinated employees.


The firm had several “engagements” with its employees regarding the need to vaccinate, but Mr Dreyden did not heed this call.  Ultimately, on 20 August 2021, the firm’s managing director sent out a communication to employees wherein they were required to confirm that they had either registered for or taken a COVID-19 vaccination, failing which they would be dismissed.  On 30 August 2021, Mr Dreyden confirmed his decision not to vaccinate and pursuant to this, his employment with the firm was terminated.


In their analysis of the fairness of Mr Dreyden’s dismissal, the Commissioners had regard to sections 8 and 9 of the Occupational Health and Safety Act 85 of 1998 (“OHSA”), which places an obligation on employers to ensure, as far as reasonably practicable, a safe working environment.  The Commissioners further had regard to the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (“Direction”), which was issued by the Department of Employment and Labour issued the Direction on 11 June 2021.


The following are the important principles enunciated by the Commissioners in Dale Dreyden award:



  • the nature of the job;
  • the degree of exposure to members of the public;
  • the degree of exposure, age, illness or comorbidities of other employees, managers and owners;
  • the reasons for an employee’s refusal to vaccinate;
  • whether work may be done from home; and whether an employee who refuses to vaccinate can be accommodated.



In applying the above factors to the facts before them, the Commissioners found that Mr Dreyden had not provided a clear reason for his refusal to vaccinate at the time when the firm’s mandatory vaccination policy was introduced.  This was in comparison with the cogent and reasonable explanation that the firm’s managing director had given for the need for the introduction of its policy, as well as its attempts to engage its employee on the vaccination requirement.  In the face of Mr Dreydan’s continued refusal to vaccinate, the Commissioners found that he was incapable of performing his duties as required by the firm and for this reason, his dismissal was substantively fair.


However, Mr Dreydan’s dismissal was found to be procedurally unfair due to the firm’s non-compliance with the Direction when it:


  • failed to inform Mr Dreydan of his right to refuse vaccination on constitutional grounds;
  • failed to ask Mr Dreydan for the reasons for his refusal to vaccinate, as well as failing to counsel him on the issue;
  • failed to engage Mr Dreydan on the issue of reasonable accommodation, as alternative to dismissal; and
  • merely dismissed Mr Dreydan via a WhatsApp message, which constituted an insufficient level of consultation on the issue.


Consequently, Mr Dreydan therefore awarded one month’s remuneration as compensation for the procedural unfairness of his dismissal, together with four weeks’ notice pay owed to him as a result of the immediate termination of his employment.

Refusal to vaccinate as a breach of contract

The Labour Court recently handed down judgment in Solidarity obo Members and Others v Ernest Lowe, a Division of Hudago Trading (Pty) Ltd (J49/22) (14 March 2022), which also involved what the company termed an “admission policy”.  The substance of the company’s admission policy was the following:


  • all employees would need to be fully vaccinated in order to access its premises;
  • as an alternative to vaccination, employees were entitled to produce a negative COVID-19 test on a seven-day rolling basis, the cost of which would be for the employee concerned; and
  • where employees failed to comply with either of the above, a “no work, no pay” policy would be adopted, as well as disciplinary action possibly being taken against them.


The high watermark of the applicants’ case was that the company’s admission policy was unlawful in that it constituted a breach of the employment contract of the second applicant (“Mrs Van Rensburg”), alternatively that the company had unilaterally changed Mrs Van Rensburg’s terms and conditions of employment.  The applicants also alleged that the admission policy constituted a mandatory vaccination policy.  Therefore, the applicants argued, its introduction ought to have compiled with the provisions of the OHSA and the Direction, the latter including the need for consultation and reasonable accommodation for employees who could not vaccinate.


The company denied that the admission policy constituted a mandatory vaccination policy, in circumstances where employees are provided with an alternative to vaccination (i.e., the production of a negative COVID-19 test).  In those circumstances, the company claimed, the provisions of the Direction did not apply to it.  It was also denied that there was any breach of Mrs Van Rensburg’s employment contract taken place nor was there any unilateral change to terms and conditions of her employment that required restoration.


Makhura AJ found that the applicants had failed to point out any provision of Mrs Van Rensburg’s employment contract that had been breached through the introduction of the admission policy.  Similarly, the applicants specified which provision of Mrs Van Rensburg’s employment contract had allegedly been unilaterally changed by the admission policy.  On this basis alone, the applicants’ claim failed.


Over and above the failures on the contractual claim, Makhura AJ found that the admission policy could not be unlawful for want of compliance with the Direction.  This was in circumstances where it was held that the admission policy did not need to comply therewith because it did not constitute a mandatory vaccination policy.  In particular, Makhura AJ found that production of a negative COVID-19 test as an alternative to vaccination, brought the admission policy outside of the ambit of a mandatory vaccination policy.  Mrs Van Rensburg’s complaint of the “unjustified hardship” of having to pay for tests was simply insufficient to bring the application of the Direction into the picture.


In his dismissing the applicants’ application, Makhura AJ found that the company had:


“… acted in accordance with the OHSA and the provisions of the Direction in its duty to provide and maintain, as far as reasonably practicable, as working environment that is safe and without risk to its employees’ health.”

The future of the Direction

On 15 March 2022, the Minister of Employment and Labour signed the Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace, Government Notice No. 46043, dated 15 February 2022 (“the Code”).  Chapter 1, clause 1, paragraph 4 of the Code provides that:


“On the expiry of the declaration of the national state of disaster, the Regulations and the Direction will cease to have legal effect. Because there remains an ongoing need to prevent and mitigate the risks associated with SARS-CoV-2 exposure in the workplace, it is necessary to incorporate those provisions in the Regulations and the Direction relevant to preventing and mitigating those risks.”


In light of the above, unless the national state of disaster is extended beyond 15 April 2022, the Direction issued in terms of OHSA will lapse and the Code will come into effect.


Essentially, the provisions of the Code echo the provisions of the Direction.  The key differences being: 


  1. the grounds upon which an employee can refuse to be vaccinated are not limited; 
  2. employers are obliged to counsel and take steps to reasonably accommodate employees who refuse vaccination (on any grounds) in positions that do not require the employee to be vaccinated; and 
  3. upon the production of an accepted medical certificate, or a medical evaluation confirming an employee has contra-indications, such employee must be accommodated in a position that does not require vaccination.


In addition, the Code now provides further guidance to employers in respect of the risk assessments to be undertaken, the plans to be prepared, and the content of such risk assessments and plans.

Concluding remarks

Therefore, with the developing legal landscape on the implementation of mandatory vaccination policies in adopting such a policy, it is recommended that employers:


  • as far as possible apply the requirements of the OHSA and the Direction (and the Code, once applicable); and 
  • keep their proverbial “ears to the ground” on incoming decisions by bodies such as the CCMA and more especially the Courts on the issue, which decisions may go a long way in providing guidance on the “dos and don’ts” of mandatory vaccination policies.


This article was reviewed by Sade Maitland, a Director of Wilken Incorporated.  This notwithstanding, no information provided herein 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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