Mandatory vaccinations are currently a trending topic as the world battles Covid-19.  In light of recent moves by employers implementing and others considering in implementing mandatory vaccinations against Covid-19, and in light of objections which have been raised against this by various individuals and groups, the question is raised as to whether the adoption of a mandatory vaccination policy could result in and entitle an employee to resign and claim constructive dismissal, due to intolerable working conditions as a result of a mandatory vaccinations policy.    

 In order to understand what a constructive dismissal is reference is made to Section 186(e) of the Labour Relations Act, 66 of 1995 (“LRA”) which states that it is considered to be an unfair dismissal when “an employee terminates his/her employment with or without notice because the employer made continued employment intolerable for the employee”. Therefore, the employee chose to resign due to unbearable / intolerable working conditions which left the employee with no other option but to resign. Therefore, it is possible that an employee may argue that by imposing a mandatory vaccinations policy which goes against his / her constitutional values or beliefs and despite lodging objections and there being no alternative measures to accommodate the employee left the employee with no option but to resign its employment due to intolerable working conditions.

Under these circumstances the burden of proof would rest with the employee to demonstrate these intolerable working conditions and linking this directly to the mandatory vaccinations policy.  However can this legally justify a constructive dismissal claim.

Employers should be aware that if employees demonstrate reluctance to be vaccinated, which may ultimately result in a resignation and a claim for constructive dismissal, that there is very little risk, if any for them to succeed on these grounds.  This notion is supported by the Occupational Health and Safety Act where the employer has a responsibility to provide a safe working environment for all employees. 

Further in support hereof is the Amended Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces which gives direction to employers in terms of the establishment of a vaccinations policy in the workplace, of which such directives were specifically also developed to balance the various Constitutional rights as well as recognizing the importance of a safe workplace.  

It is the writer’s opinion that should an employer follow the directions as published which would include doing a proper risk assessment in the workplace, engaging and educating staff on the issues and further attempt to reasonably accommodate any objectors in the workplace by looking at alternative means first as opposed to a dismissal, that the employer would be able to defend any dismissal claim.  Such claim will include a dismissal by virtue of intolerable working conditions should the employee resign constructively or alternatively be dismissed by the employer due to a refusal to be vaccinated.  Employers must however always ensure consistency in the treatment of all staff which will include objectors in the implementation of its mandatory vaccinations policy.