A long-term employee who was retrenched because she refused to get a Covid vaccination was not entitled to a severance package, the Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled.
Commissioner Piet van Staden, in his recent ruling, said the termination of the services of Cecilia Bessick by Baroque Medical, a supplier of medical equipment, was substantively and procedurally fair.
Her decision not to adhere to the employer’s mandatory vaccination policy was “unreasonable”, he said, ruling that she was not entitled to any severance pay.
Bessick had complained that she had been unfairly retrenched and the company had not adequately considered alternatives.
At the time, she was 64 years old, nearing retirement, and had worked at the company as an invoicing clerk for 22 years.
She and three others, who elected not to abide by the compulsory vaccination policy, were all retrenched.
Read the full ruling
Evidence by a representative of the company during the hearing was that there had been broad consultation before the implementation of the policy, followed by individual meetings with those who objected or delayed getting the vaccination. During the consultations, employees were informed that the mandatory policy was an “operational requirement” underpinned by health and safety.
The policy was circulated in July 2021. A few days later, Bessick confirmed that she objected to being vaccinated “because of medical, personal and religious reasons”.
Three further consultations were held with her, and on 8 September she was served with a termination notice.
The witness for the company said the policy was “non-negotiable” and it was unclear what Bessick meant by her objection.
Bessick had failed to articulate in what respect she believed she was being discriminated against due to her beliefs or religion. Her reference to an “immediate allergic reaction” because she had an existing blood disorder was also unsubstantiated and the company had rejected it.
The witness said the company had considered allowing employees not to be vaccinated, but this had been rejected because it would mean “two sets of rules” and monitoring a variety of objections would be impractical.
Repeated Covid testing had also been considered, but the company had felt this was too high a risk and also impractical.
It was not possible for Bessick to work from home. She interacted with her colleagues on a daily basis and also engaged with clients, such as hospitals, medical practices and other health service providers who demanded that company staff be vaccinated.
In her evidence, Bessick said her doctor had advised her that the vaccination might “trigger something” and “it was not a good idea at this stage”. She confirmed she had not submitted any proof of this.
She said she was a Christian and did not believe in vaccination and “agreed with the sentiments regarding the creation of a new world order and this was slowly kicking in”.
She said she did not know what was in the vaccine, it had been “rushed”, and she was not interested in finding out what was in it.
“She noted that she could have worked from home and could have done some invoicing and other functions at a reduced salary because she only had 18 months left before retirement,” the commissioner said.
He said the company had complied properly with government requirements for the implementation of a mandatory vaccination policy, including undergoing a risk assessment, and the “necessity to vaccinate, in my view, speaks for itself”.
The company had also made out a case for the retrenchment process it had embarked upon.
The commissioner said Bessick had elected not to comply with the vaccination policy.
“The choice was hers. On the facts, I am unable to conclude that the employer has committed any wrongdoing in its decision to terminate her services,” he said.
On the issue of severance pay, he said Bressick could have been vaccinated and kept her job.
“Her refusal has no merit, and her refusal was unreasonable. It would be grossly unfair to expect the employer to pay any severance in the circumstances,” he said.
This article was first published by GroundUp and is republished with permission in terms of a Creative Commons Attribution-NoDerivatives 4.0 International Licence.
