Woman wins CCMA case after being retrenched for refusing COVID-19 jab

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The Commission for Conciliation, Mediation and Arbitration (CCMA) was recently involved in a case regarding mandatory COVID-19 vaccines.

The matter involves a disgruntled employee from Baroque Medical (Pty) who took legal action against the company. This was after she failed to follow the company’s mandatory vaccination policy.

The woman, Kgomotso Tshatshu, was retrenched a year ago for not taking the jab. She has since won her case of unfair dismissal and Commissioner Richard Byrne ruled that Baroque Medical would need to compensate her a year’s salary.

This is almost R300 000 and needs to be paid by 25 July 2022.

The background

Tshatshu worked as a Senior Inventory Controller for the company that deals with the supply of medical equipment to hospitals. In her evidence, she stated that she chose to not get the COVID-19 vaccine.

Her reason was that she was afraid of the vaccine due to a negative response she endured from a flu vaccine a decade ago. Tshatshu revealed that she was not required to go to any hospitals due to her line of work.

What did Baroque Medical do?

After informing her company of her choice, she was asked to produce a doctor’s note. Tshatshu complied but then Baroque Medical requested that she visit a specialist.

The specialist did not want to write a detailed report for her given she was not ill at the time. The company argued that their vaccination policy was strict and inflexible. Adding that they had already dismissed four other employees who chose to not be vaccinated.

ALSO READ: Employees afraid of contracting COVID-19 can refuse to work

Speaking of why they have such a policy in place, Baroque Medical said the aim was to minimise the transmission of COVID-19 while improving their employees’ health.

The company admittedly respected an individual’s Constitutional Right to refuse vaccination but said a Section 189 process would follow if an employee refused to be vaccinated and went through consultation.

ITshatshu won the case and Baroque Medical was ordered to pay her 12 months salary by 25 July. Photo: Diverse Stock Photos / Flickr

Commissioner finds Baroque Medical’s statement ‘bizarre’

The company did not give Tshatshu any severance pay following her retrenchment. It stated that she did not receive a reasonable doctor’s note.

Responding to this, Commissioner Byrne stated that it was ‘bizarre’.

“Baroque Medical’s case was that since they did not accept the medical reasons for the applicant’s refusal to be vaccinated, that this was different to the event that the applicant provided a well-reasoned and credible reason not to be vaccinated. The outcome of this was that, in any event the applicant would be retrenched, but if she had good reason to object to vaccination, she would receive severance pay. Clearly, since the outcome was the same, severance pay would have been due. The lack of logic is astounding,”

said Byrne.

Conclusion of the court case

Byrne stated that the company’s policy was unreasonable. Citing that not one country had proclaimed compulsory vaccination as a law for citizens. Byrne revealed that Tshatshu did not want to be reinstated.

He stated that the dismissal should not have happened and that Tshatshu subsequently lost employment she had for years due to ‘the employer’s breach’. He granted 12 months’ compensation for Tshatshu, reports IOL.

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