/ 27 January 2022

Solidarity vs University of Free State in vaccine mandate court case

UFS said in its announcement that it consulted widely with stakeholders including legal firms that and up to 85% of the university’s senate supported the decision.

Employers and employees are likely to get more clarity regarding the Covid-19 vaccination mandates that most companies started implementing last year. That’s because trade union Solidarity has brought a court case against the University of the Free State (UFS) following inquiries from more than 300 of its members about the legality of mandatory vaccinations.

As of 14 February, all staff and students will be required to be vaccinated before they may enter the university grounds. 

According to the Covid-19 regulations and required vaccination policy, those who are not vaccinated may seek exemption for medical, religious or legal reasons, because they have a natural immunity objection or because they are participating in a medical trial. 

If approved, they will receive a permit that gives them access to the university, but if declined, an access permit will be provided under the proviso that a negative Covid-19 PCR (or polymerase chain reaction) test will be required every week and the individual will have 14 days to get vaccinated.

Should they not get vaccinated within that time, an employee might be transferred and a student might consider discontinuing their studies.

But Solidarity says that the employer is acting outside of the directive that was issued by the department of employment and labour.

“In spite of the department of labour’s directives stating that a blanket approach to vaccination and mandatory vaccination at employers should be avoided, several employers have still embarked on a mandatory vaccination policy without following the proper individual risk assessment procedures. The University of the Free State is one of four cases Solidarity undertook to get legal certainty and legal precedent,” said Connie Mulder, the head of the Solidarity Research Institute.

Although the union is dealing with more than 300 cases regarding mandatory vaccination, Mulder said Solidarity strategically chose cases such as the one against UFS to set a legal precedent.

Some members were concerned about how the decision to make Covid-19 vaccines mandatory was handled.

Mulder said, “Some members are vaccinated but are concerned about an employer overstepping their jurisdiction by forcing them to undergo a medical procedure. Other members are concerned about the lack of consultation and cooperation, with members being locked out without pay in certain instances without having been properly consulted before the policy was implemented.”

UFS said in its announcement that it consulted widely with stakeholders including legal firms that and up to 85% of the university’s senate supported the decision.

But labour expert and Democratic Alliance MP Michael Bagraim said it would be impossible for universities to prove or show a court that every single individual’s rights and duties had been taken into account.

Bagraim also said that mandatory vaccination in the workplace will never become law in South Africa, like it has in Zimbabwe, because individuals are protected by the Constitution and labour laws.

“However, an individual employer can, under certain circumstances, make it mandatory for certain staff in the workplace to have the vaccination after consultations and discussions. These consultations will take into account factors such as the employee’s reasons for not having the vaccination,” he added.

Bagraim said most employers were already trying to implement vaccine mandates without using a blanket approach. He said current labour laws do allow employers to make it mandatory for certain employees to vaccinate.

“Our health and safety regulations are absolutely clear in that the employer must do everything they can to make the work environment as safe as possible. Current medical knowledge and government thinking does encourage the vaccination and does state that the vaccination would be the healthy option,” Bagraim said.

The Commission for Conciliation, Mediation and Arbitration recently ruled that the dismissal of an employee who refused to vaccinate was done “substantively” fairly by the Goldrush group.

In a report by the African Legal Information Institute,published on Polity, commissioner Lungile Matshaka found that employee Theresa Mulderiji’s refusal to vaccinate created an unsafe working environment and that the dismissal should be upheld.

It was heard that the company had spent three months consulting with workers and unions before implementing the policy. 

The arbitration award stated that the workers had to confirm receipt of the mandatory workplace vaccination policy, that it was explained to them, and that they had read it, and that employees had to apply for exemption for review by the committee.