Quitting rather than getting vaccinated in South Africa: what you need to know… A growing number of South African companies have announced plans to introduce mandatory Covid-19 vaccinations for staff, leading to an increase in legal questions regarding constructive layoffs and resignations.
Employees may wonder if they want to continue working for their employer in a situation where they are forced to get the vaccine, says Bradley Workman-Davies, director of Werksmans Attorneys.
If an employee decides to quit rather than get vaccinated, a starting point to consider would be Section 186 (e) of the Labor Relations Act (LRA), he said.
This section provides that it is considered an unfair dismissal when an employee terminates his employment with or without notice because the employer has made continued employment intolerable for the employee.
“In other words, the employee has to resign – which is not a termination by an employer – in circumstances where the employee did not actually want to do so, but remaining employed was seen as an intolerable option,” due to the conduct of the employer.
“This is called a ‘constructive dismissal’, in which the employer is held responsible for making the work environment so toxic, deplorable or intolerable, that the employee simply could not stand it anymore and resigned as a result, “he said. .
An objective test
“The main starting point in determining whether a constructive dismissal has occurred is to note that, since the employee seeks to hold the employer accountable for the employee’s actions, the onus is normally on the employer to prove that the dismissal was fair, is overthrown, and the employee must prove that the employer’s conduct caused him to resign, ”said Workman-Davies.
He noted that this is an objective test, and was summarized in the case of Botha against ARDT 2000 Trading CC trading where it was indicated that “a judicial officer must consider the behavior of the employer as a whole and decide if it is so unbearable that it involves the decision of the employee to resign”.
The CCMA also stated that “in order to demonstrate that the continued employment of an employee was intolerable, the employee must allege and prove facts which show that this was objectively the case.‘.
As such, the mere fact that the employee subjectively felt that he had no choice but to resign does not demonstrate constructive dismissal – it must be shown that a reasonable person in the same circumstances as the employee would have had no choice but to resignSaid Workman-Davies.
“Employers need to know that if employees are reluctant to be vaccinated, even though they may threaten to do so, and may ultimately resign, provided the employer has taken the necessary steps to adopt a vaccination policy and treat all employees fairly and consistently, he is unlikely to face legal consequences from employees resigning to avoid the vaccinated workplace. “
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