Old Mutual resolves disputes with staff fired over Covid vaccination policy

Former Old Mutual employees who were dismissed just under two years ago for non-compliance with the group’s mandatory Covid-19 vaccination policy “are now welcome to apply for new roles at Old Mutual” – but only those who followed the Labour Court route, it seems.

During the height of the Covid-19 crisis, Old Mutual dismissed at least 49 employees for non-compliance with the policy announced in November 2021. Put into effect in January 2022, the policy was dropped in June that same year.

A month later, Business Day reported that Old Mutual said it would not reinstate staff it fired for refusing to comply with the policy. Shortly afterwards, Sasbo – The Finance Union (formerly the South African Society of Bank Officials) said it planned to approach the Labour Court on this matter.

This week, Old Mutual confirmed that an amicable agreement had been reached with the former employees.

“This means that all cases currently before the Labour Court have been resolved and have been withdrawn from the court roll. This resolution is an acknowledgement, by all involved, that it is time to move forward from the very dark time the pandemic created across the globe,” the statement read.

Moonstone asked what the stipulations of the agreement were and to how many former employees it applied. Old Mutual said that at this stage, the group believed that all it needed to declare publicly about the matter was covered in the statement.

“We have always maintained that our decisions were made in good faith and based on the science and laws which prevailed during the pandemic. Our aim was to protect the overall well-being of the communities we serve, including our employees, customers, and various other stakeholders.”

In the statement, the group said it had tried to accommodate employees who did not want to be vaccinated and provided an alternative option. Employees who were prepared to be tested regularly and could produce proof of negative Covid-19 tests were exempted from being vaccinated. Old Mutual said it had also offered to defray the test costs these employees incurred.

“This settlement is therefore neither an admission of liability nor linked to the merits of the case, and all these former colleagues are now welcome to apply for new roles at Old Mutual,” the statement read.

Moonstone attempted to contact Sasbo for comment on the agreement, but no feedback had been received by the time of publication.

The rise and fall of the mandatory vaccination policy

In September 2021, Discovery led the charge by announcing plans for mandatory vaccinations. Sanlam quickly followed suit, pledging to implement the policy early in 2022. On 12 November 2021, Old Mutual announced it had adopted a mandatory Covid-19 vaccination policy for its employees in South Africa, effective 1 January 2022.

At the time, Iain Williamson, the chief executive of Old Mutual, said the company believed that mandatory vaccination was an important step to ensuring it created a safer working environment for its employees and customers “and contributing to the much-needed economic recovery”.

Soon after, companies such as Dis-Chem, MTN, Anglo American, Aspen, Life Healthcare, ENSafrica, Momentum Metropolitan, and Standard Bank also adopted mandatory Covid-19 vaccination policies. Some firms hinted at possible job cuts for non-compliant employees, while others said they would not take such measures.

But as swiftly as it came, the mandatory vaccination policy went. By July 2022, most big businesses in South Africa had begun to abandon compulsory Covid vaccinations and testing requirements for their workers. Among them was Standard Bank, which at that point had dismissed 40 employees and put others on special leave, according to News24. Unlike Old Mutual, however, Standard Bank, following the withdrawal of the policy, immediately said it would begin to engage with dismissed employers “to explore re-employment opportunities”.

According to Daily Maverick, Standard Bank and Old Mutual said the mandatory policies were no longer required because most of their workforce (each at more than 90%) was already vaccinated against Covid and because the pandemic was at a stage where it was well managed and understood. However, the publication hinted that pressure brought by Sasbo and the Congress of South African Trade Unions to repeal their vaccination mandates might also have had something to do with it.

Another might have been the rulings on the validity of mandatory vaccines by the Commission for Conciliation, Mediation, and Arbitration (CCMA) that had begun to filter through.

In July last year, Daily Maverick reported that the CCMA said it had received at least 291 cases of workers dismissed for refusing to vaccinate from November the preceding year to date. Most of the cases were in the Western Cape.

According to CCMA director Cameron Morajane, nine of the awards were in favour of the employer and another nine were in favour of the employee, “while the remainder of the matters are either still in process, have been abandoned by the referring party, or have been settled by the parties”.

Yay or nay?

When employers implemented the mandatory vaccination policy, there was much controversy and argument over whether an employer had the right to implement such a policy or not. With the pandemic now far behind in society’s rearview mirror, the outcome of this debate may seem irrelevant.

But Carla Jordan, the chief executive of Emerald Africa, says recent statistics produced by independent data modellers such as Airfinity found there is an approximately 25% to 30% likelihood of another pandemic of the same or greater magnitude within the next 10 years. That percentage jumps to more than 50% within 25 years.

If past deliberations on this matter are anything to go by, it might take that long to determine a definitive answer.

There has not been a clear decision on the legality and enforcement of mandatory vaccination policies in South Africa. The Labour Court has not yet ruled directly on mandatory vaccinations in the workplace. The CCMA, on the other hand, has had to weigh in on several disputes that emanated from the fact that employers terminated employment contracts of employees who refused to vaccinate.

So far, the CCMA has issued awards both in agreement and disagreement on whether companies were justified to dismiss employees for failure to vaccinate.

However, as Khwezi Mqoboli, a candidate legal practitioner in Pretoria, and Mziwamadoda Nondima, a legal practitioner at Nondima Attorneys Inc in East London, pointed out in article published in De Rebus in October last year, a CCMA award does not create a precedent. This means that commissioners are not bound by previous awards. They can rule differently.

Referring to several CCMA cases (Mulderij v Goldrush Group, Bessick v Baroque Medical Pty Ltd, and Tshatshu v Baroque Medical (Pty) Ltd), Mqoboli and Nondima concluded that employers have failed properly to justify the limitation of section 12(2) of the Constitution, which states:

“Everyone has the right to bodily and psychological integrity, which includes the right—

(a) to make decisions concerning reproduction;

(b) to security in and control over their body; and

(c) not to be subjected to medical or scientific experiments without their informed consent.”

As explained by the two legal practitioners, the limitation clause in section 36 of the Constitution lays down a test (two-stage approach test). Mqoboli and Nondima say it does not appear as if this test had been considered when the employers adopted their policies.

“Yes, the working environment must be safe, and it would suffice to have the vaccination policy and other measures to curb the effect of Covid-19. A flexible and carefully drafted vaccination policy would have prevented these disputes.

“Having said that, we are now sitting with some confusion – which award sets precedent?”