- The Labour Court dismissed Aurelia Somora Richards' bid to overturn a CCMA ruling that upheld her dismissal by Santam.
- The court found her failure to comply with Santam's workplace policy amounted to misconduct, not incapacity.
- Acting Judge R Abrahams also upheld findings that Richards had acted dishonestly by making serious allegations she could not substantiate.
A former Santam employee has failed in her attempt to overturn a CCMA arbitration award that found her dismissal for misconduct was fair after she repeatedly failed to comply with the insurer's COVID-19 workplace requirements.
The Labour Court in Cape Town dismissed Aurelia Somora Richards' review application, concluding that the CCMA commissioner reached a reasonable decision and that there was no basis to interfere with the arbitration award.
Acting Judge R Abrahams handed down judgment on 31 July 2026 in the dispute between Richards, Santam Limited, the Commission for Conciliation, Mediation and Arbitration (CCMA), and Commissioner Mxolusi Ndulzwana, who had presided over the arbitration.
Vaccination policy at the centre of dispute
Richards had been employed by Santam as a service consultant since May 2014. During the COVID-19 pandemic, Santam introduced a workplace policy requiring office-based employees either to be vaccinated or, if they chose not to be vaccinated, to submit regular negative PCR COVID-19 tests before reporting for duty.
Richards chose not to be vaccinated and initially complied with the alternative requirement by submitting regular PCR test results. She also applied for an exemption from the vaccination policy, but that request was refused.
Her difficulties began in April 2022 when she failed to submit a negative PCR test and did not report for work, resulting in a written warning. Although she resumed compliance for a period, she again stopped submitting PCR tests in June 2022 and remained absent from work.
Santam later charged her with gross insubordination, unauthorised absence and dishonesty before dismissing her in August 2022. Richards referred an unfair dismissal dispute to the CCMA, but the commissioner found the dismissal was fair.
Employee argued financial hardship amounted to incapacity
Before the Labour Court, Richards argued that the commissioner had fundamentally misunderstood the nature of the dispute. She contended that once she could no longer afford the cost of regular PCR tests, her inability to comply with the policy should have been treated as incapacity rather than misconduct.
She also argued that her failure to comply with the policy was not deliberate because it resulted from financial hardship and that the commissioner had incorrectly found her guilty of dishonesty.
Court rejects incapacity argument
Judge Abrahams rejected each of those arguments. The judge noted that Richards had never challenged the lawfulness, reasonableness or applicability of Santam's vaccination policy and had complied with it for several months before ceasing to do so.
The court also found that while Richards relied on her Christian faith to justify refusing vaccination, she failed to provide convincing evidence that Christianity prohibited vaccination.
Judge Abrahams wrote that "the Applicant's subsequent financial incapacity did not amount to a disability or incapacity as envisaged in the COVID protocols," adding that the commissioner had correctly characterised the matter as one of misconduct rather than incapacity.
Failure to report for work amounted to gross insubordination
The court accepted that Richards remained absent from work after receiving a final written warning and did not even present herself at work to determine whether she would be denied entry.
Judge Abrahams found that "one can only conclude that her actions in this regard were both wilful and persistent, and amounted to a serious challenge to the employer's authority."
The judgment further stated that Richards "cannot escape the consequences of that choice. Freedom of choice is not freedom from consequence."
The judge concluded that the commissioner was justified in finding Richards guilty of gross insubordination because she knowingly failed to comply with a valid and reasonable workplace instruction.
Serious allegations could not be substantiated
The Labour Court also upheld the commissioner's finding that Richards had acted dishonestly. In her CCMA referral, Richards accused Santam of favouritism, discrimination, racial discrimination, unfair treatment and abusive workplace practices.
However, Judge Abrahams found she had failed to produce evidence supporting any of those allegations. The judge held that "the Applicant was unable to substantiate a single one of these allegations in evidence," concluding that the commissioner could not be faulted for finding that Richards had acted dishonestly when making the claims.
Review application dismissed
Having rejected all three grounds of review, the Labour Court dismissed Richards' application and left the CCMA arbitration award intact. Judge Abrahams also made no order as to costs.
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