A Gautrain employee who refused to be vaccinated against Covid-19 was unsuccessful in a labour court hearing. The judge ruled that his employer, Bombela Operating Company, had valid grounds for dismissal because the employee could not provide convincing reasons for his refusal of vaccination.
The Johannesburg Labour Court overturned an arbitration ruling that had previously deemed V Ravele's dismissal procedurally and substantively unfair. Judge Renaud Neil Daniels replaced this decision with an order declaring Ravele's dismissal fair, thereby overturning the previous ruling which had ordered Bombela to reinstate him and pay six months' back pay.
Reasons for the dispute and employee concerns
The conflict arose from Bombela's mandatory Covid-19 vaccination policy, introduced during the pandemic to protect employees and visitors interacting with its staff. Ravele, who worked as a train conductor, objected to the vaccination requirement on January 25, 2022. He argued that mandatory vaccination violated his constitutional right to bodily integrity and also expressed concerns about the vaccine's composition, potential effects on his genes and reproductive capacity, and the uncertainty of long-term effects.
Bombela's Vaccination Review Committee rejected his objection, finding that he had not provided reasonable and substantiated reasons for refusing the shot. The company offered him another chance to comply with the policy, but he maintained his stance. Subsequently, Bombela initiated proceedings due to his inability to perform duties and suspended his employment while the matter was under review.
During the incapacity hearing on March 24, 2022, Ravele proposed providing regular negative PCR tests for Covid-19 instead of vaccination. However, the company rejected this proposal, arguing that his job required frequent contact with passengers and colleagues, and regular testing would not be a viable alternative under the circumstances. Ravele was dismissed on March 25, 2022.
Employer's arguments
Bombela insisted that Ravele's conductor position made it difficult to place him in another role. His duties included assisting the train driver, participating in operational and safety matters, responding to passenger requests, and regular interaction with the public and other staff. The company argued that it was responsible for ensuring a reasonably safe working environment and had to balance Ravele's constitutional rights with the health and safety concerns of other employees and passengers.
The court heard evidence that Bombela provided information and support to employees who were hesitant about vaccination. The company organized vaccination campaigns and allowed employees to voice their concerns through individual consultations and virtual meetings. Its medical officer, Dr. Millicent Tlakula, testified that she made her phone number available to employees wishing to discuss vaccination-related issues. Ravele met with Tlakula on February 15, 2022, after the company organized a consultation, but he remained opposed to vaccination.
Evidence also showed that he sought advice from his pastor but did not ask his union, the National Union of Metalworkers of South Africa (NUMSA), to involve a scientist to examine his concerns. During cross-examination, Ravele could not explain the basis of his concerns that vaccination might alter his genes or affect his reproductive function. He insisted that he would only consent to vaccination after the Constitutional Court declared it safe.
Judge's conclusions
Judge Daniels found that Ravele failed to provide reasonable grounds for his objections to vaccination. The judge also dismissed his proposed alternative of regular PCR testing, deeming his version of this arrangement unlikely based on the evidence presented. The court took into account the nature of his work, his constant interaction with colleagues and passengers, and the employer's duty to protect the health and safety of people in the workplace. It was established that Bombela had sound operational and sanitary reasons for implementing its vaccination policy during the pandemic.
The ruling emphasized that an employee's right to bodily integrity is not absolute and must be considered alongside the employer's duty to protect its personnel and visitors. The court concluded that there was no reasonable way for Bombela to accommodate Ravele while he continued to refuse vaccination.
Overturning the reinstatement order
Ravele's dismissal was initially challenged through arbitration, where the commissioner ruled that Bombela acted unfairly and ordered his reinstatement with payment of six months' compensation for the period of suspension. Bombela appealed to the Labour Court to review and overturn this arbitration decision. The company argued that the commissioner had not properly assessed the fairness of the dismissal and had placed too much emphasis on alleged procedural shortcomings in implementing the vaccination policy.
The dispute involved issues concerning consultations with NUMSA and the timing of the company's workplace risk assessment. Judge Daniels found that the commissioner had failed to consider substantial evidence and had misinterpreted aspects of the fairness investigation. The judge also determined that the commissioner had erroneously relied on the date the risk assessment was signed, instead of properly considering evidence that it had been completed earlier. The court concluded that errors in the arbitration process rendered the decision unfounded, justifying judicial intervention. Judge Daniels reviewed and set aside the arbitration ruling, replacing it with an order stating that Ravele's dismissal was both procedurally and substantively fair.
