Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace: Ongoing Court Action.-NEASA

[Nat Quinn]

by NEASA | Dec 5, 2022 | Newsletters

COVID-19
CODE OF PRACTICE: MANAGING EXPOSURE TO SARS-COV-2 IN THE WORKPLACE
ONGOING COURT ACTION

Dear NEASA subscriber

As previously communicated, NEASA commenced legal action against the National Economic Development and Labour Council (NEDLAC), the Minister of Employment and Labour, the Advisory Council for Occupational Health and Safety and the President of the Republic of South Africa  (‘the Respondents’), in August 2022, to review and set aside the decision by NEDLAC to enforce the “Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022” (‘the Code’), as implemented by the Minister of Employment and Labour, which effectively requires employers to implement mandatory vaccination policies in the workplace.

Despite the fact that the State of Disaster has been lifted and all other restrictions have been removed by the Department of Health, the Respondents persist with the enforcement of this Code, irrespective of the deliberate decision by Government to not enforce mandatory vaccination on the general public.

The Respondents have delivered the records on which the decision to implement the Code was based and the content is quite illuminating. The following is clear from the records:

• the decision was made by a substructure of NEDLAC which was not empowered to do so;

• no minutes exist of the meeting where the actual decision was taken;

• the decision was not based on any form of scientific data or expert opinions;

• the decision was made on the incorrect assumption that vaccines prevent the spread of the virus;

• no public or even proper consultation with any parties was conducted in respect of a matter that infringes constitutional rights of a large portion of the population; and

• no reasons were provided as to why the Code had to be implemented.

In light of these fundamental shortcomings, it is difficult to see how the Respondents will be able to convince a court that their decision to implement the Code and restrict the constitutional rights of citizens was in any way rational.

NEASA has filed its supplementary affidavit in this matter based on the contents of the records and will continue to fight for the abolishment of this Code, which infringes on the rights of employees and places impossible and potentially disastrous legal obligations on employers.

In the interim, in the absence of clear direction from the courts as to the legality thereof, employers are advised to not implement mandatory vaccination policies. To do so may potentially expose employers to serious liability.

We will keep you abreast of developments in this regard.

For more information:
NEASA Media Department
media@neasa.co.za

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