Does the introduction of a policy denying employees entry onto the employer’s premises due to not being fully vaccinated or not being able to produce a covid negative test weekly constitute a unilateral change to terms and conditions of employment?
In Solidarity obo members and another vs Ernest Lowe, a division of Hudaco Trading (Pty) Ltd (LC) (unreported case no J49/22, 14-3-22), the court was faced with this question.
In this case the employer had issued a notice to all employees informing them that beginning the new year, only employees who were fully vaccinated or who could produce a weekly negative covid 19 test result, may enter its premises. The employer also explained that while it was not forcing employees to vaccinate, it would not contribute to the cost of the weekly covid 19 tests should the employee decide not to vaccinate.
One of the employees in question was subsequently refused access onto the employer’s premises because she could not provide a certificate demonstrating that she was vaccinated or produce a covid 19 negative test result.
The union and the employee (the applicants) filed an urgent application in the labour court seeking an order that the employer’s admission policy was unlawful and further that it amounted to a unilateral change in terms and conditions of employment in that the employees’ contract did not provide for mandatory vaccination nor for an employee providing a weekly negative covid 19 test result.
The court held that the applicants were unable to point to any specific term of the contract that was breached because of the adoption of the admission policy. Further, there was no provision of the contract of employment that the employees alleged was unilaterally changed by the introduction of the admission policy.
In the absence of any specific reliance on a particular term and/or condition of the contract of employment that had been breached or unilaterally changed, the court stated that it was unable to find that there was any breach of contract that occurred because of the introduction of the admission policy. The court also stated that there are no provisions of the employment contract that need to be restored as the employee’s contract had not been changed.
The court also considered whether the employers admission policy was a mandatory vaccination policy. In this regard the court found that it was not, as employees had the option of submitting a negative covid 19 test result every seven days to continue rendering services without the
need to take the vaccine.
The application was accordingly dismissed.
On 9 March 2020 Rule 41A of the Uniform Rules of Court came into effect. Rule 41A makes it a mandatory requirement as a pre-action for parties to consider mediation before they venture to court.
Sub rule (2)(a) compels a plaintiff to file a prescribed Rule 41A notice agreeing to or opposing mediation, before a summons or notice of motion may be issued. Sub rule (2)(b) compels a defendant to also file the same notice, before a plea or opposing papers may be issued.
As statutory mediation is still relatively new in South Africa, it will be interesting to follow how mediation and its supporting guidelines will develop.