Labour Court rules - refusing access for employees

The Labour Court published its first judgment in relation to workplace vaccination policies.
Even before Ernest Lowe finalised a policy restricting access to its workplace to curb the spread of COVID-19, an employee made it clear that she was unwilling to receive the COVID-19 vaccine but was willing to submit a weekly COVID-19 test at the employer’s expense. The employer told her it would not pay for the test and would therefore not allow the employee onto its premises, and the no-work-no-pay principle would apply.
Solidarity wrote a letter to the employer stating that the site entry policy was in contravention of the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, issued on 11 June 2021 and that, by adopting such a policy, the employer unilaterally changed the employee’s terms and conditions of employment.
The employer notified all employees on 13 December 2021 that admission to its premises would only be granted to employees who

• had been fully vaccinated, or
• produced a weekly negative COVID-19 test result, at the employees’ expense.

OBLIGATIONS UNDER THE OHSA
The employer informed Solidarity that it implemented the admission policy in terms of its obligations under sections 8 and 9 of the Occupational Health and Safety Act (OHSA), setting out out the employer’s duty to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to its employees’ health, as well as an undertaking that persons who are not its employees but may be directly affected by its activities are, as far as is reasonably practical, not exposed to hazards to their health or safety.
The employee arrived at the employer’s premises on 4 January 2022 and was refused entry. The employee launched an urgent application to the Labour Court challenging the admission policy. The employee argued that:

• the admission policy breached several provisions of her contract of employment;
• the site entry policy constituted a mandatory vaccination policy; and the employer did not comply with the requirements set out in the Direction to lawfully implement such a policy.

The employer disputed that the admission policy constituted a mandatory vaccination policy, and that it breached the employee’s contract of employment. It argued that the admission policy was introduced in compliance with the OHSA. Further, the admission policy was not mandatory as employees had options.
LABOUR COURT FINDINGS
The court was unable to find that the admissions policy constituted a mandatory vaccination policy and was not a breach of the Direction and the OHSA.
In fact, the court found that the employer acted in accordance with its duties in terms of section 8 and 9 of the OHSA, as well as the Direction. The court dismissed the urgent application. The admissions policy did not refuse unvaccinated employees’ entry to the work premises: employees had to access the premises. They had two options to access: vaccinate or submit weekly negative COVID-19 tests at their own expense, which the court found was not a breach of the contract of employment or a unilateral change to the terms of employment.
The employee was unable to identify a specific term of her employment contract that was breached because of or by the adoption of the admission policy; and there was no provision in the contract that the employer had unilaterally changed by the introduction of the admission policy.
Considering this, the court stated that there were no provisions that needed to be restored as the employee’s contract had not been changed or breached.
The Labour Court found that the employee failed to plead and demonstrate how the admission policy amounted to a mandatory vaccination policy because of the options made available.