By Lehlohonolo Lehana.
Standard Bank has withdrawn its Covid-19 vaccination policy with immediate effect, with approximately 95% of its employees already vaccinated.
In an emailed statement, the bank said it took a range of factors into account in reviewing its policy, including recent regulatory developments, the current state of the pandemic in South Africa, and the high vaccination rate amongst its employees.
In a statement issued to employees at the end of June, Standard Bank South Africa chief executive Lungisa Fuzile said that the country had reached a significant milestone in managing the Covid-19 pandemic and that the bank would be revising some of its safety measures and the existing Covid-19 policy and protocols.
“Based on the current context of the pandemic, we believe that our vaccination policy is no longer required. Consequentially, it is no longer compulsory for employees to be vaccinated, or to produce a negative PCR or Rapid Antigen test if they are unvaccinated, in order to enter our premises,” said Fuzile.
He emphasised that, even though the bank had withdrawn the policy, it continues to support and encourage vaccination.
Should circumstances with respect to the pandemic change, the bank may, in future, adjust and review its policy and protocols in order to maintain a safe working environment, he said.
“Thank you for all your efforts in helping us maintain a safe working environment and continuing to serve our clients in what has been a challenging time for many of us,” said Fuzile.
Standard Bank’s decision comes after recent Commission for Conciliation, Mediation and Arbitration (CCMA) rulings took various positions – for and against – mandatory vaccine policies.
In the past, the CCMA ruled that workers who were fired for refusing to take the vaccine were dismissed fairly. However, more recent rulings have found in favour of employees, citing unfair dismissal.
The latest CCMA case found vaccine mandates to be ‘unconstitutional’.
The latest case centred on a senior inventory controller who worked for a company which supplies equipment to hospitals and other end-user, said Bankey Sono, director at Werksmans Attorneys.
On 22 July 2021, the employer communicated its mandatory vaccination policy. In terms of clause 6, it was a requirement for all employees to vaccinate and clause 10 stated that “[e]mployees who refuse to be vaccinated will be in breach of the Company Policy and their services may then be terminated for operational reasons”.
“After the refusal of the employee to vaccinate, the employer took the decision to retrench her. The employee referred a dismissal dispute related to operational requirements to the CCMA related to the non-compliance with the employer’s mandatory vaccination policy.”
The CCMA was therefore called upon to determine whether the dismissal of the Applicant was fair or not.
The CCMA held that the dismissal of the employee was substantively unfair and in the words of the senior commissioner ‘in fact unconstitutional’.
The commissioner was of the view that mandatory vaccination policies are unconstitutional and that the rule in respect of mandatory vaccination was unreasonable.
“Despite the nobility of the declaration by the CCMA, only the High Court can pronounce on the unconstitutionality of a policy and the said unconstitutionality has to be confirmed by the Constitutional Court. Constitutionality simply does not fall within the purview of the CCMA, Sono said.
Furthermore, on 22 June 2022, the minister of employment and labour published the Code of Practice: Managing Exposure to SARS-CoV 2 in the workplace which remains applicable.
In terms of this code, employers may continue developing and enforcing mandatory vaccination policies. This is subject to employers firstly conducting a Risk Assessment and concluding a plan in terms of which employees identified in the risk assessment must be vaccinated.
It is the outcome of the risk assessment that directs the Employer’s decision whether or not to have a mandatory vaccination policy in place, in order to ensure the safety of their workplace. The obligation to ensure safety in the workplace stems from the Occupational Health and Safety Act (OHSA) read together with Regulations to the OHSA and the code itself.”
“Whilst the award raises interesting and important questions surrounding the constitutionality of mandatory vaccination policies, in the face of the Code, there is nothing in the law as it currently stands that prohibits employers from having and enforcing mandatory vaccination policies in respect of their individual workplaces, “Sono said.