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Davies Ndumiso Sibanda

WHILE many unions believe that employees’ right not to be vaccinated should be respected, one thing they miss is that many vaccinated employees do not want to work with their unvaccinated colleagues.

Having attended some works council meetings, I have had occasions where some workers committee members propose retrenchment of those who do not want to be vaccinated.

In one company, workers argued that the employer had a duty to protect them from the unvaccinated colleagues.

This debate is a complex one as it touches on religious beliefs, cultural beliefs, medical conditions and many others.

Social media has also had its share of contribution to the rejection of vaccination. In most organisations, particularly in the mining industry, almost all employees including their families have been vaccinated.

In one mine compound all have been vaccinated except the 14-18-year-olds who are currently being vaccinated.

Unvaccinated visitors are not allowed both into the mine and the compound. Interestingly the mood of workers is high as they argue that they haven’t had a positive case for some time since everyone got                                   vaccinated.

The above case shows that some of the legal disputes over vaccination could be much ado about nothing. However, those workers who do not want to be vaccinated have a right to object but there is a school of thought that says that the employer has a duty to protect employees.

Thus, he or she can bar the unvaccinated from work or terminate them for incompatibility. Such approach is likely to end in court where judges will give direction. There is also another school of thought that says Covid-19 has changed the way the business of the employer is done especially in the areas of physical contact and security.

This means those employees who refuse to be vaccinated as part of creating a safe environment can be terminated through a minimum retrenchment package and the employer arguing that they have ceased to be an asset to the business and some other acceptable argument related to safety and health risk.

The question that arises is whether the courts are likely to accept the argument that the unvaccinated are safety and health risk. The answer is almost obvious. Given the fact that our courts have been hit by Covid-19 and are preaching vaccination of all their employees the anti-vaccination lobby will have a tall order convincing judges that unvaccinated should be allowed free access to the workplace.

From a labour relations perspective the best possible option is educating employees on pros and cons of vaccination and persuade the workers to vaccinate. We are, however, beginning to see some employers using unorthodox methods to push workers to vaccinate. I heard a rumour of an employer who placed unvaccinated employees in high-risk areas so that some of them contract the disease and become billboards for others.

Some have been excluded from meetings and told to attend online.  Others have been told to work from home and sales vehicles withdrawn and given to vaccinated employees with the argument that the vehicles are primarily for work and customers do not want to be served by the unvaccinated.

In such cases sales commission dries out and employee income gets smaller. Others have kept the unvaccinated working from home with vaccinated leapfrogging them in onsite operations. These and many other pressure tactics have been used with a mixed bag of results.

On the other hand, the unvaccinated have engaged unions and human rights lawyers creating an environment of negative publicity for the employers and put the employer in unplanned litigation costs.

In conclusion, the issue of unvaccinated employees who do not want to be vaccinated is better handled internally through the internal communication and education mechanisms so as to avoid costly conflicts and litigation whose results at the moment are unknown.

Further, loss of employees through Covid-19 related deaths in unvaccinated employees or lost time as employees quarantine due to Covid-19 could be a good basis for courts to allow dismissal of the unvaccinated from work except where alternative work arrangements can be made to accommodate the unvaccinated.

-Davies Ndumiso Sibanda can be contacted on: [email protected]