Times Of Swaziland: TUCOSWA SAYS NO TO MANDATORY VACCINATION TUCOSWA SAYS NO TO MANDATORY VACCINATION ================================================================================ Khulile Thwala on 15/02/2022 08:39:00 MBABANE – Should employees not keen to be vaccinated for COVID-19 be added to the unemployment statistics? This question has come to the fore once again as there is an evident rise worldwide of action being taken against unvaccinated workers, with dismissals due to employees’ refusal to vaccinate becoming more prominent than ever. A recent arbitration award issued by the Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa, in a matter between Theresa Mulderji vs Goldrush Group, determined that Mulderji, who was an employee of Goldrush, was permanently incapacitated on the basis of her decision not to get vaccinated and by implication, her refusal to participate in the creation of a safe working environment. She was further dismissed from Goldrush. Trade Union Congress of Swaziland (TUCOSWA) Secretary General Mduduzi Gina, when asked about the union’s view on this topical issue, said on the outset as a federation they encouraged vaccination in the labour force, however as a principle, did not agree with this being mandatory. encourages “We wish to state that the federation encourages all workers to vaccinate to curb the diverse effect of the coronavirus. As a principle, however, we do not agree that vaccination should be compulsory. If employers want to join the vaccination project, we understand that their interest is not on the workers’ lives per se,” he said. Gina further said some of the employers’ interest was on the disruption of production as a result of the possible sickly workforce. “It is our view that the employers must put up incentives that would entice its workforce to vaccinate. There should be no policy to impose a vaccine on workers, as that proves to be a challenge to their constitutional rights. Workers and employers must agree on their approach to that,” said the TUCOSWA secretary general. In previous reports it was stated that ‘The new world of work’ was going to be explored by the Conciliation, Mediation and Arbitration Commission (CMAC) and other labour law experts on February 24, 2022. One of the key discussions during the Labour Law Seminar will be compulsory vaccination in the workplace. Worldwide, employers are formulating policies on vaccination and whether they can require their staff to be vaccinated against COVID-19. In light of governments also changing policies to ensure vaccination becomes mandatory, employers both within and outside the healthcare sector may want to consider very carefully their evidence base for mandating COVID-19 vaccination of their staff as it stands, or stood, at the time they mandate the requirement. In neighbouring country South Africa, there are already companies which have instituted the mandatory vaccination policy such as the MTN Group and Old Mutual. Locally, the Anglican Church has instructed its Clergy to vaccinate at a compulsory basis. According to Insight, there are numerous laws and policies at play when instituting mandatory vaccination in an organisation. In the absence of a government mandate, employers who wish to mandate vaccinations or to collect information about the vaccination status of their employees will need to consider a number of employment and privacy law issues. Dispute In a recent arbitration award issued by South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA), SA’s primary dispute resolution body issued its first award in respect of an employee refusing to vaccinate in the face of the employer’s mandatory vaccination policy. The neighbouring country published the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces in June 2021, which has since brought up the debate about the legality of mandatory COVID-19 vaccinations in the face of constitutional safeguards protecting an individual’s right to freedom and security of person, the right to bodily and psychological and psychological integrity and freedom of religion. “In a matter between Theresa MulderjivsGoldrush Group, MsMulderji referred an unfair dismissal dispute to the CCMA on the grounds of incapacity. She had been employed by Goldrush as its business related and training officer. After undertaking a risk assessment of its workplace in respect of COVID-19, Goldrush had opted to introduce a mandatory vaccination policy and allowed employees the opportunity to apply for exemption from the compulsory inoculation scheme,” highlighted an article on ENSAfrica, by Irvin Lawrence and Ehigie Marilyn Okojie. Exemption “Following the refusal of MsMuderji’s exemption and appeal application, and her continued refusal to comply with the mandatory vaccination policy, she was summoned to an incapacity hearing by Goldrush,” stated the article. It was further highlighted that after the hearing, the presiding officer concluded that MsMulderji was permanently incapacitated based on her refusal to get vaccinated. She was then dismissed. “MsMulderji then approached the CCMA, challenging the substantive fairness of her dismissal and sought reinstatement or maximum compensation. In the arbitration proceedings, Goldrush indicated that it had gone through a thorough risk assessment process before resolving to apply a mandatory vaccination policy. “It was also contended, that given the nature of MsMulderji’s duties, there was no other position where she could be placed. MsMulderji raised her right to bodily integrity as a defence to dismissal,” read in part the article on the arbitration award. She further stated that she felt under extreme social pressure and emotional discomfort at being subjected to deciding between her livelihood and agreeing to be vaccinated, especially in circumstances where she had to waive her rights of recourse against pharmaceutical companies and her employer. The employee, Mulderji, when stating her case, further pointed out that since the beginning of the national lockdown, she had strictly followed COVID-19 protocols and was aware that the World Health Organisation (WHO) had confirmed that the vaccine does not stop the spread or contraction of COVID-19, but only served to minimise the severity of symptoms. “All MsMulderji wanted was for Goldrush to exempt her mandatory vaccination and offer her an alternative position. It also emerged during the proceedings that Mulderji abandoned her intention to seek medical exemption after her doctors had refused to provide a medical certificate in support of her application.” Crucial When handing down the assessment of the matter, the CCMA commissioner concluded that Goldrush had followed all the crucial steps set out in its vaccination policy and that the company considered Mulderji’s exemption claim. She was further identified as a high risk individual who was required to interact with colleagues daily while on duty in confined, uncontrollable spaces. The commissioner concluded that Mulderji was permanently incapacitated on the basis of her decision not to get vaccinated and by implication, her refusal to participate in the creation of a safe working environment. It was further included in the report on the matter that although this arbitration award may provide a sigh of relief to employers, it is important to note that this may not be the final word on the matter and the Labour Court or even the Constitutional Court in that country, may ultimately be called upon to determine this issue in due course.