The CCMA held that the dismissal of the employee was substantively unfair and in the words of the senior commissioner "in fact unconstitutional".
The commissioner was of the view that mandatory vaccination policies are unconstitutional and that the rule in respect of mandatory vaccination was unreasonable.
Despite the nobility of the declaration by the CCMA, only the High Court can pronounce on the unconstitutionality of a policy and the said unconstitutionality has to be confirmed by the Constitutional Court. Constitutionality simply does not fall within the purview of the CCMA.
Furthermore on 22 June 2022 the Minister of Employment and Labour published the Code of Practice: Managing Exposure to SARS-CoV 2 in the Workplace, Government Notice No. 46596 (the Code) which remains applicable. In terms of this Code, employers may continue developing and enforcing mandatory vaccination policies. This is subject to employers firstly conducting a risk assessment and concluding a plan in terms of which employees identified in the risk assessment must be vaccinated. It is the outcome of the risk assessment that directs the employer’s decision whether or not to have a mandatory vaccination policy in place, in order to ensure the safety of their workplace. The obligation to ensure safety in the workplace stems from the Occupational Health and Safety Act (OHSA) read together with Regulations to the OHSA and the Code itself.
Whilst the award raises interesting and important questions surrounding the constitutionality of mandatory vaccination policies, in the face of the Code, there is nothing in the law as it currently stands that prohibits employers from having and enforcing mandatory vaccination policies in respect of their individual workplaces.