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Inquiry into an employee’s incapacity requires more from an employer than meets the eye

Author: Nombulelo Myeni – Associate

*Supervised by: Gugulethu Mthalane – Director & Head of Employment

In the case of Theresa Mulderij v Goldrush Group, the employer (Goldrush Group) implemented a mandatory Covid-19 vaccination policy to minimise the risk of employees being exposed to the virus.

Theresa Mulderij was employed by the Goldrush Group as business-related and training officer. She was dismissed after refusing or failing to comply with her employer’s mandatory vaccination policy. Mulderij, who held strong personal convictions against the vaccine, submitted that the mandatory vaccine would infringe on her constitutional right to bodily and psychological integrity, and her security in and over her body. However, she was unsuccessful in her claim and her employer denied her exemption from the policy.

Mulderij was subsequently dismissed by her employer on grounds of incapacity. She referred an unfair dismissal dispute to the CCMA. She submitted further in mitigation that she continued to strictly adhere to other government-sanctioned Covid-19 protocols and had never been infected. The Commissioner found in favour of the employer and held that Mulderij was permanently incapacitated based on her decision not to get vaccinated and refusal to participate in the creation of a safe working environment.

Dismissal due to incapacity

The Commissioner’s decision calls for re-assessment of what it means for an employee to be dismissed based on incapacity due to ill health. It is our view that this decision is susceptible to review, with good prospects of success for the employee for the following reasons:

  • An incapacity dismissal is a no-fault dismissal that requires the employer to do a bit more than assess the circumstances of the employee. The employer must intervene to accommodate the employee and only resort to dismissal as the last option.

  • The Code of Good Practice on dismissal provides guidance to employers on how to handle potential incapacity cases in the workplace. To start with, it is important for employers to understand what incapacity entails and particularly what the difference is between permanent and temporary incapacity.

  • Incapacity suggests that an employee is incapable of performing their duties due to ill health or injury. This may be a temporary or permanent condition affecting the employee’s performance or attendance to work. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal.

When is dismissal unfair?

Item 11 of Schedule 8 to the Code states that any person determining whether a dismissal arising from ill health or injury is unfair should consider:

  • whether or not the employee can perform the work; and

  • if the employee is not capable

- the extent to which the employee is able to perform the work;

- the extent to which the employee’s work circumstances might be adapted to accommodate the ill health/injury, or, where this is not possible, the extent to which the employee’s duties might be adapted; and

- the availability of any suitable alternative work.

While the Code merely reflects the guidelines that were laid down by the labour courts under the 1956 LRA, the Labour Appeal Court has held that its requirements are mandatory in cases such as IMATU obo Strydom v Witzenberg Municipality (2012) 33 ILJ 1081 (LAC).

In the case of Standard Bank of South Africa v CCMA (2008) 29 ILJ 1239 (LC), the court noted that a claim of unfair dismissal on the ground of incapacity goes further than the LRA may seem to suggest. Such dismissals involve several constitutional rights, including the right to equality, to human dignity, to choose an occupation, and to fair labour practices.

Is there really a case against Mulderij?

On perusal of the award against Mulderij, it cannot be said with certainty that the employer or the Commissioner applied their minds to the requirements of the Code of Good Practice. To start with, at the time of her dismissal Mulderij was still capable of performing her duties, the only challenge being that her employer did not want her to do so without being vaccinated. Her failure to comply with the mandatory vaccination policy did not render her physically or mentally incapable of performing her duties.

However, the Commissioner went on to determine that Mulderij’s refusal to get vaccinated rendered her permanently incapable of performing her duties, without an inquiry into whether the employer explored any options to accommodate her. There was no indication in the award that the employer presented any evidence that Mulderij’s refusal to vaccinate had affected her work (or even the health of other employees) in a way that could no longer be tolerated by the employer.

While navigating Covid-19 in the workplace has been challenging, it cannot be said that it has rendered office work impossible. Mulderij was employed as a business-related and training officer. While the extent of her duties was not discussed in the award, it can be surmised that it is an office-based job that can be accommodated by making provisions for her to work virtually, requiring her to take frequent Covid-19 tests, ensuring social distancing in training sessions, mask wearing in the office, and providing Mulderij with a private work area - all of which would have enabled her to continue performing her duties without compromising her constitutional rights.

A dismissal in these circumstances may be fair, if it is based on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal. On proper consideration of the Code of Good Practice, no reasonable Commissioner would have concluded that Mulderij was fairly dismissed.

Our view

In our view, there is no reason why an office worker who has limited contact with others should be vaccinated against her will. Besides which, and from what the experts have said, the only person at risk is the person who refuses to be vaccinated. Surely an employer cannot compel an employee to protect themselves.

The employer and the Commissioner misconceived the nature of the dispute. At best the employee ought to have been charged with misconduct for refusing to comply with the employer’s policy, and even in these circumstances the employer would still have to prove that the rule is reasonable and be guided by the Code of Good Practice in disciplining the employee.


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