President of the Industrial Court Deborah Thomas-Felix has said an employer cannot alter its terms and conditions to make the covid19 vaccination mandatory for employees.
Unless government establishes laws that would make the covid19 vaccine compulsory, organisations cannot demand that their workers take the vaccine.
What employers can do is encourage workers to be vaccinated.
Thomas-Felix, during a webinar focused on best practices in industrial relations on Wednesday, reminded employers that one of the practices of good industrial relations is that they must not unilaterally alter terms and conditions of employment.
In response to a question, she said, “It cannot be that the whole population is forced to take an injection, whether it is for the greater good or not for the greater good. There must be those who are exempted, or who have particular concerns that they will not want to take it – because you’re dealing now with human rights law, which is a totally different kettle of fish.
“So I understand the reason why the ministry (of Health) will not make it compulsory. And therefore, employers need to look at that, before they decide to make that compulsory.”
She also said employers cannot threaten dismissal over an employee’s refusal to take the vaccine.
“If someone is working in an organisation and they have been working under ‘X’ terms, you cannot now say, ‘Well, take a vaccine injection or I’ll put you out,’ because what are we doing is unilaterally altering terms and conditions.”
But, she said, while an existing employee cannot be forced to take the vaccine, the covid19 vaccine requirement can be introduced to new employees so that they can decide before accepting the job.
Thomas-Felix said the government must now look at the question of forced public health policies on employees in the workplace. “While the public health policies such as OSH Act is there, there are also rights of citizens, generally, across the board and these rights cannot be trumped by a policy…And therefore, before they say everybody must be vaccinated or not be vaccinated, there must be some sort of law.”
