A Gauteng judge ruled last week that trade union Solidarity’s case against Small Enterprise Employers of SA is not urgent and ordered it to pay costs.
The urgent application by Solidarity challenging the Pretoria-based company’s policy on mandatory Covid-19 vaccinations was struck from the Johannesburg Labour Court roll on Thursday.
The union approached the court on an urgent basis on behalf of its members Wynand Fransua Coertzen and Stephanie Christensen, who are employed by human and industrial relations solutions provider Small Enterprise Employers of SA as a software developer and legal adviser respectively.
Solidarity wanted the court to issue an order declaring unlawful the refusal by the company to allow Coertzen and Christensen to continue with their duties.
The company refused the applicants access to the workplace after they reported for duty at the beginning of the year because they had failed to abide by the company’s mandatory vaccination policy.
Solidarity also asked the court to declare the company’s mandatory vaccination and admission policies unlawful, and to prevent the company from starting a retrenchment process against Coertzen until it had complied with “a lawful procedure”.
The company’s policy on mandatory vaccinations states that, owing to operational needs and occupational health and safety obligations, “it concluded that vaccination will be mandatory for all employees”.
Labour Court acting judge Tameshnie Deane struck the urgent application from the roll and ordered Solidarity to pay the company’s costs.
In a statement on Thursday, the company said it welcomed the judgment.
“Our main priority remains the health and safety of all our staff and clients. (The company) will continue to impartially advise clients according to the relevant directives and legislation, irrespective of their stance on mandatory vaccination,” it said.
Solidarity’s head of communications, Morne Malan, said that only the urgency of the matter was dealt with by the Labour Court. He could not say when the matter would be heard, “as we are still waiting for confirmation from the court”.
The union said it had approached the court in the interests of Coertzen and Christensen, “whose employment prospects and career opportunities stand to be prejudiced and unlawfully infringed upon as a consequence of (the company) refusing its employees access to the workplace due to their vaccination status, purportedly imposed by a mandatory Covid-19 policy”.
However, Christensen consented in the end to being vaccinated on December 20 and received her second dose on January 31, according to the company. When she reported for duty on January 4, she was denied entry, with the national manager saying that “had she obtained the vaccine earlier, it would not have been a problem”.
Meanwhile, Coertzen was informed on December 30 that, because he had chosen not to be vaccinated, he would not be allowed access to the company’s premises on January 3, no further instructions to perform work would be given to him, and he would not be remunerated. He was presented with a retrenchment notice on January 14.
Labour lawyer Tarcia Makgolane said employees who could not provide valid reasons for refusing to get vaccinated could be dismissed if the employer could not find them a position with less or no risk of Covid-19 infection.
“There is a lot of talk around companies bringing in a mandatory vaccination policy for their staff. It’s good to know that the rights of individuals in terms of the Constitution are not absolute and are coupled with responsibility. They can be limited by public policy.
“They can be determined to be less important or in the interest of the greater good – the collective. In the context of a global pandemic, this is a prime example that the protection of the greater good will trump individual rights.
“There is a duty on an employer to maintain a safe environment, and if they don’t they could be liable. If individuals do not comply, for whatever reason, even if it’s constitutional, the rule of mandatory vaccination would be held to be legitimate, especially if it is in the interests of public policy and, in fact, national policy,” she said.
Sunday Independent