Solidarity will take employers who dismiss employees over vaccinations to court

18 June 2021

Solidarity will take employers to court who dismiss employees because of their choice not to be vaccinated. Following the new directive as issued by the Department of Labour on 28 May 2021, Solidarity obtained a comprehensive external legal opinion confirming that employees have a right to choose not to be vaccinated and employers may not deprive them of this choice.

Solidarity is of the opinion that there is certainty in the directive from the Department that employees have the right to refuse the vaccine on the grounds of Constitutional and bodily integrity reasons and that employers must do everything in their power to accommodate such employees. According to Solidarity it will be illegal for an employer to make vaccinations compulsory without considering individuals’ Constitutional rights such as bodily integrity.

According to Solidarity CEO, Dirk Hermann, vaccinations globally will play a major role in the fight against the virus. It will also be the case in South Africa. This is not about a “for or against the vaccine” debate, but about the freedom to choose.

Solidarity argues that some supporters of the compulsory workplace vaccinations would like to argue that the employer, according to the directive, has unlimited rights to unilaterally decide about vaccinations at work, but that it in fact, emphasises that employees have the right to refuse the vaccination based on religious and/or bodily integrity reasons.

“The new directive from the Department of Labour’s point of departure is that vaccinations may not be unilaterally compulsory,” stated Hermann. “The directive also stipulates that in highly exceptional circumstances and after proper analysis and consultation, employers can expect employees to be vaccinated in certain work areas. However, we cannot allow people to confuse the exception with the rule.”

The directive, however, determines that even in highly exceptional circumstances, employees still have a choice not to be vaccinated. Motivations can include medical tests, religious reasons and the Constitutional right to bodily integrity. It is the employer’s responsibility to find alternatives for employees who choose to refuse the vaccine.

“Employees have freedom of choice. These directions cannot give employees the right to choose leading to dire consequences at their employers. Forced vaccinations will rather cause more resistance. These unilateral decisions that are accepted by some people and employers as the rule, is extremely dangerous. There is no indication at all of such a unilateral compulsory vaccination decision and application by an employer,” explained Hermann. “It is simply unlawful for an employer to unilaterally force an employee to be vaccinated, and one can even argument that it infringes on each individual’s right to bodily integrity. We will not hesitate to protect our members with the full power of the law, if employers make such drastic decisions,” concluded Hermann.

Statement issued by Anton van der Bijl, Head: Legal Matters, Solidarity, 20 June 2021