The recent arbitration award by the CCMA on the issue relating to mandatory vaccination has caused much controversy, but this came as no surprise.
Subsequently, I listened to a talk show on the radio where the same issue was discussed. The guest was an attorney who expressed a view that an employee who refuses to take a vaccine would consequently be permanently incapacitated.
He further, boldly so, stated that once an employee refuses to vaccinate that would invariably lead to the impossibility of performance. In so saying, it would seem, he relied on the Occupational Health and Safety Act (OHSA) or regulations thereto. This is bizarre, to say the least.
Section 4 of the Basic Conditions of Employment Act (BCEA) provides that this piece of legislation is a term to every employment contract. The exception in this regard would be sections 49, 50 and 51 thereof. Another exception would be where the employer offers more favourable rights than those in the BCEA.
In other words, every employment contract in SA is generally governed by the BCEA. Needless to say, the BCEA makes no provision for mandatory vaccination.
The Occupational Health and Safety Act was promulgated primarily for safety in the workplace.
The purpose thereof is: “To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery; the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work; to establish an advisory council for occupational health and safety; to provide for matters connected therewith.”
Some commentators have tried to sneak in mandatory vaccination by making reference to health and safety in the workplace. This is misleading because the OHSA was promulgated primarily to address issues relating to heavy machinery and hazards in the workplace.
There is nothing in the OHSA that prescribes mandatory vaccine nor does the legislation make mention of same. Mandatory vaccines and the consequences thereof are found in the regulation. The status of the regulation versus legislation thus become relevant. Regulations are a subset of legislation. They serve to strengthen the former and not vice versa. Interpretation and application of the law arbiters are required to interpret and apply the law.
Reading the arbitration award referred to above suggests that the arbiter did not apply the law but has interpreted and applied the company's policy on the vaccine. He did not test policy against the law and this is to be expected because we have no legislation on mandatory vaccination.
Incapacity, at least according to the Labour Relations Act 66 of 1995 (as amended), has two legs; ill health and poor work performance. The LRA in this regard supersedes any other legislation on the subject (See section 210 thereof).
The applicant in the matter in the discussion did not claim nor was she diagnosed with any illness that prevented her from placing her personal labour at the disposal of the employer. It is therefore factually and legally incorrect to say she has been incapacitated.
• Maseko is a Sowetan reader
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