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CCMA upholds security firm’s suspension after employee refuses to get vaccinated

Picture: EPA/JEAN-CHRISTOPHE BOTT

Picture: EPA/JEAN-CHRISTOPHE BOTT

Published Jan 28, 2022

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Durban – The Commission for Conciliation, Mediation and Arbitration has upheld a security's firm's decision to suspend an employee after he declined to be vaccinated.

While the ruling found that the reason for suspension was not based on his decision not to be vaccinated but rather due to another matter, the CCMA ruled that the suspension was not unfair and the employer did not act within the parameters of the labour practice laws.

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Gideon Kok had taken up the matter with the CCMA, accusing Ndaka Security and Services of unfair labour practice after he was given notice that he could only return to work if he was vaccinated or get a weekly Covid-19 test.

According to the company, which is contracted to Sasol Ltd, all employees are required to be vaccinated.

CCMA ruling documents stated that Kok had undergone a few Covid tests but was no longer going to take the test after he was requested to pay for them.

In his argument, Kok maintained that he was not willing to be vaccinated for personal reasons.

He said he was a devout Christian who had already recovered from Covid -19 and had taken medication when he was ill. He added that he only recovered once he had stopped taking medication and relied on his body's natural immunity and faith.

Following communication between himself and the company, Kok was told that he would not be able to enter his place of work unless he provided a weekly negative Covid test. He was subsequently denied access to work.

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Kok told the CCMA that he believed the motive for his suspension was due to another issue that arose from a verbal altercation with a colleague. He added that he did not believe he was a frontline worker, therefore he did not need to be vaccinated.

His employer disputed this, explaining that three risk assessments were conducted and, in line with the Disaster Management Act, security personnel were on the frontline and had close contact with other employees as well as the public. Furthermore, while there was no mandatory vaccine policy in place, due to the risk assessments, Kok identified as an employee, was required to be vaccinated. It was also found that Kok shared an office with 10 other employees and contracted Covid some months earlier and via contact tracing, it was possible that several of his co-workers contracted Covid from him.

The employer argued that it was not possible for Kok to work from home and he was not suspended as a result of his refusal to be vaccinated, rather he was instructed to stay home or submit a weekly Covid-19 report which action was not a genuine suspension.

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“He was however suspended much later for issues that did not relate to the Covid issue at all. He refused to sign the Applicant's proposed indemnity form drafted by a lobby group containing clauses that were not factual and the COIDA legislation covered injuries in any event,” the Arbitrator found.

The CCMA further noted that Kok’s suspension was not due to his refusal to be vaccinated however, this was the matter at hand and therefore the employer’s decision was not unreasonable.

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