Associates Tracy van der Colff and Kirsty Gibson of Baker McKenzie Johannesburg write that the Commission for Conciliation, Mediation and Arbitration (CCMA) has issued its first finding regarding the fairness of an employee's dismissal following her refusal to be vaccinated.

On 21 January, CCMA commissioner Lungile Matshaka held that an employee who refused to be vaccinated in terms of a mandatory vaccination policy was fairly dismissed for incapacity. This decision provides important guidance for employers who plan to implement a mandatory vaccination policy. Employers must ensure that they follow the procedure set out in the Consolidated Direction on Occupational Health & Safety Measures in Certain Workplaces. This includes undertaking a risk assessment and ensuring a fair procedure is used to decide on applications for exemptions. The employer must consider each application for exemption and attempt to reasonably accommodate the employee. Where reasonable accommodation is not possible, the employee may be dismissed for incapacity. The employer should not use a blanket approach when considering applications for exemption and the measures to implement for reasonable accommodation. Rather, the employee's specific health conditions and their role within the company should be analysed to determine the risk they are exposed to, and the risk they are exposing their colleagues to. Importantly, this award confirms that each individual owes it to their community to be civic minded and to make decisions which are in the legitimate interests of such community. This obligation equally applies in the workplace.

• Read the full original of the article in the above regard by Tracy van der Colff and Kirsty Gibson at BusinessLive

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