Gautrain conductor loses Labour Court case over Covid-19 vaccine refusal

A Gautrain conductor who refused to receive a Covid-19 vaccine has lost his legal battle against his dismissal after the Labour Court in Johannesburg ruled that his employer was justified in ending his employment.

Judge Reynaud Neil Daniels set aside an arbitration award that had declared V Ravele’s dismissal unfair and ordered Bombela Operating Company to reinstate him with six months’ back pay.

The court instead ruled that the dismissal was both procedurally and substantively fair, finding that Ravele had failed to provide a reasonable basis for his objections to vaccination.

Why the conductor refused vaccination

Ravele objected to Bombela’s mandatory Covid-19 vaccination policy on 25 January 2022, raising concerns about bodily integrity, the vaccine’s ingredients, possible effects on his genes and reproductive capacity, and uncertainty about its long-term effects.

The company’s vaccination review panel rejected his objection, finding that he had not provided sufficient grounds to justify refusing the vaccine.

Bombela gave him another opportunity to comply, but he maintained his position. The company subsequently initiated an incapacity process and suspended him while it considered the matter.

During an incapacity hearing on 24 March 2022, Ravele proposed submitting regular negative Covid-19 PCR test results as an alternative to vaccination.

Bombela rejected the proposal, arguing that his role required frequent contact with passengers and colleagues and that regular testing was not a workable alternative in the circumstances.

He was dismissed on 25 March 2022.

Employer cites passenger safety

Bombela argued that Ravele’s duties made it difficult to accommodate his refusal to be vaccinated in another position.

As a conductor, he was required to assist the train driver, handle operational and safety matters, respond to passenger queries and interact regularly with the public and other employees.

The company said it had a responsibility to maintain a reasonably safe working environment and had to consider Ravele’s rights alongside the health and safety of passengers and colleagues.

The court heard that Bombela had provided opportunities for employees to discuss their concerns, including vaccination drives, individual consultations and virtual meetings.

Occupational medical practitioner Dr Millicent Tlakula testified that she had made herself available to employees who wanted to discuss vaccination.

Ravele met with her on 15 February 2022 but remained opposed to receiving the vaccine.

Evidence before the court also indicated that he had sought advice from his pastor but had not asked his union, the National Union of Metalworkers of South Africa (NUMSA), to arrange for a scientist to address his concerns.

During cross-examination, Ravele was unable to explain the basis for his fears that vaccination could alter his genes or affect his reproductive capacity. He maintained that he would only agree to vaccination if the Constitutional Court ruled that it was safe.

Judge finds objections were not sufficiently supported

Judge Daniels found that Ravele had failed to establish a reasonable basis for refusing vaccination.

The judge also rejected his account of the proposed PCR testing arrangement, finding it improbable on the evidence presented.

In reaching his decision, Daniels considered the nature of Ravele’s work, his regular contact with passengers and colleagues, and Bombela’s responsibility to protect people in the workplace.

The judgment found that the company had compelling operational and health-safety reasons for implementing its vaccination policy during the pandemic.

It also addressed the balance between an employee’s right to bodily integrity and an employer’s duty to protect the health and safety of its workforce and the public.

The court concluded that Bombela had no reasonable way to accommodate Ravele while he continued to refuse vaccination.

Labour Court overturns reinstatement award

Ravele initially challenged his dismissal through arbitration. The commissioner found that Bombela had acted unfairly and ordered the company to reinstate him with six months’ back pay.

Bombela then approached the Labour Court to have the arbitration award reviewed and set aside.

The company argued that the commissioner had failed to properly assess the fairness of the dismissal and had placed undue emphasis on alleged procedural shortcomings in implementing the vaccination policy.

The dispute also involved questions about consultation with NUMSA and the timing of the workplace risk assessment.

Judge Daniels found that the commissioner had failed to consider material evidence and had misunderstood aspects of the inquiry into the fairness of the dismissal.

The judge also found that the commissioner had relied incorrectly on the date the risk assessment was signed instead of properly considering evidence that it had been finalised earlier.

Daniels concluded that these errors rendered the arbitration award unreasonable and justified the Labour Court’s intervention.

The court consequently reviewed and set aside the award, replacing it with an order declaring Ravele’s dismissal procedurally and substantively fair.

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Source: iol.co.za