- The company’s COVID-19 policy instructed employees with medical concerns to seek advice from a GP or health professional.
- Kgomotso Tshatshu obtained two written medical reports recommending against vaccination, but both were rejected.
- The Labour Court upheld the CCMA’s finding that her dismissal was substantively and procedurally unfair.
Baroque Medical’s Mandatory COVID-19 Vaccination Policy required employees who believed they had medical reasons not to be vaccinated to consult a general practitioner or health professional and submit supporting medical evidence.
Kgomotso Tshatshu followed this process. The senior inventory controller consulted two doctors, both of whom issued written medical reports recommending that she should not receive a COVID-19 vaccine because of her medical history.
Instead of accepting or properly challenging this evidence, Baroque Medical rejected both reports and dismissed her for operational requirements. The dispute ultimately reached the Labour Court in Johannesburg after the company tried to overturn a CCMA award in her favour.
Acting Judge MJ Ngobeni dismissed the review application and ordered the employer to pay the costs of the proceedings.
Two doctors advised against vaccination
Tshatshu first consulted her family doctor, Dr Chothia, after the company encouraged employees with medical concerns to seek professional advice. The doctor recommended that she should not be vaccinated because of her history of ill health.
When Baroque Medical rejected that report, Tshatshu sought a second opinion from Dr Smook, who also advised against vaccination, citing her history of bronchopneumonia and severe flu-like symptoms following a previous vaccination.
The company dismissed both medical reports as hearsay and maintained that vaccination remained compulsory under its workplace policy.
Labour Court backs the employee
Baroque Medical argued that the CCMA commissioner had committed several reviewable irregularities and that the doctors’ reports could not justify an exemption.
Judge Ngobeni disagreed, saying, “It boggles the mind when the applicant summarily resorts to rejection of the medical reports of two general practitioners who are generally assumed to be qualified doctors.”
The judge said there was no evidence that either doctor was incompetent or fraudulent and criticised the employer for dismissing their professional opinions without seeking expert evidence of its own.
He added that the company’s conduct was “tantamount to abuse and the bullying of an obedient and an honest employee, who only wanted to protect her well-being.”
CCMA award remains in force
The Labour Court concluded that the commissioner’s decision was fair and reasonable and refused to interfere with the award.
As a result, Tshatshu’s compensation of R279,600, equivalent to 12 months’ salary, remains in place, while Baroque Medical must also pay the costs of the review application.
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