In the past year, the Commission for Conciliation, Mediation and Arbitration (CCMA) has delivered several arbitration awards which have upheld the dismissals of employees who refused to get vaccinated against Covid.

But a recent award has created some confusion about whether this is still allowed and under what circumstances.

On 22 June, CCMA Commissioner Richard Byrne found that it was unfair and unconstitutional for Baroque Medical, which supplies and sells medical equipment, to retrench Kgomotso Tshatshu for refusing to get a Covid vaccination. The company was ordered to pay her 12 months’ salary as compensation (the maximum allowed).

But this contradicts an earlier CCMA award by Commissioner Piet van Staden, delivered in May, who found that Baroque Medical was within its rights to retrench another employee, Cecilia Bessick, who had also refused to get a Covid vaccine.

These conflicting decisions may be understandable because CCMA arbitration awards do not create a binding legal precedent in the same way as court judgments. The most recent CCMA ruling, therefore, does not set a binding legal precedent that employees cannot be dismissed for refusing to get a Covid vaccine.

The Labour Court has also not yet delivered any binding judgment about whether an employer can fairly dismiss an employee who refuses to get a Covid vaccination. Until this occurs, it is likely the CCMA will continue to give conflicting decisions about whether employers can fairly dismiss employees who refuse to get a vaccine.

Below, we explain what the law currently says about whether an employee can be dismissed for refusing to get a Covid vaccine and under what circumstances.

Labour Relations Act

The Labour Relations Act (LRA) says that an employee can only be dismissed for these reasons:

• When they are guilty of misconduct;
• Suffer from an incapacity, such as ill health or injury, which prevents them from performing their duties;
• Have to be retrenched because of the economic, structural, technological or similar needs of their employer.

The LRA also requires an employer to follow a fair procedure before dismissing an employee. Usually, this would involve explaining to an employee why they could be dismissed if they refuse to get a Covid vaccine and give the employee an opportunity to explain why they should not be dismissed.

The LRA, however, does not explain whether an employee who refuses to get vaccinated can be dismissed for misconduct or incapacity. The LRA also does not explain whether an employee who refuses to get a Covid vaccine can be retrenched.

Occupational Health and Safety Act

But the Occupational Health and Safety Act does require employers to take all reasonable steps to provide their employees with a safe and healthy working environment.

The act also requires employers to take reasonable steps to ensure other people who may be affected by their business activities (such as customers or suppliers) are not exposed to a hazard to their health or safety – such as Covid.

During March, the Minister of Labour issued a Code of Good Practice which explains the steps that an employer should take to manage Covid in their workplace and to comply with their legal duties to provide a safe and healthy working environment.

This code was enacted after a previous directive on managing Covid in the workplace was repealed after the State of Disaster came to an end.

Code of Good Practice

According to the new Code of Good Practice, every employer with at least 20 employees must conduct a “risk assessment” and must develop a Covid plan with the measures it will implement regarding vaccination of employees and when they should be fully vaccinated.

When developing the plan, the employer must consult with any representative trade union in its workplace or an employee representative.

The risk assessment and plan, among other things, should identify employees who must be vaccinated and must notify them of their duty to get a vaccination.

The code also states employers can require employees to disclose their vaccination status and to produce a vaccine certificate in order to give effect to the code.

The code further states that employees can lawfully refuse work when there exists a serious risk that they may imminently be exposed to Covid in the workplace. Should this occur, the employer cannot take any action against that employee for refusing to work, such as later dismissing or suspending them from work.

There may be situations where a refusal by employees to work because other employees refuse to get vaccinated, could justify the dismissal of the employees who refuse to get a Covid vaccine. This is because the refusal of many employees to work could affect the ability of a company or business to operate.

This could potentially justify the retrenchment of employees who refuse to get a Covid vaccine.

However, should an employee refuse to get vaccinated, the code also says that the employer should take steps to reasonably accommodate them in a position that does not require them to be vaccinated.

Should an employee produce a valid medical certificate, which provides legitimate reasons why they cannot be vaccinated, the employer can send that employee to another doctor at their own expense.

The code does recognise that it would be unfair to dismiss employees who cannot be vaccinated on valid medical grounds. But, the duty to accommodate employees who refuse to get vaccinated on other grounds would depend on whether an employer has another position available which does not require that employee to be vaccinated.

Should the employer not have an alternative position which does not require the employee to be vaccinated, this could be a fair reason to dismiss them.

It is important to note that the code does state that it reflects the policy position of the Department of Labour and that it should be applied until any of its provisions are reversed by a court judgment.

Until the Labour Court delivers a binding judgment on when employees can be dismissed for refusing to get a COVID vaccination, it would seem it would be best to follow the provisions of the code.

POPCRU is disheartened by awful conditions experienced by the trainees at Kimberly and Tshwane academies. A series of undesirable conditions at these academies include, among others, poor nutrition, unequal treatment, non-payment of stipends for some trainees and non-medical cover.

These conditions dismally contravene the key objective of the training, which is to equip trainees with both legal and policing skills to protect and serve members of communities in terms of the Constitution of South Africa, 1996 (Act No 108 of 1996) as it is almost impossible to produce a pool of well-trained police officers under such appalling circumstances.

This horrifying situation necessitated POPCRU, as a leading trade union within the SAPS, to engage in picketing to table the following demands:

Non-payment of stipends
A total of 545 trainees did not receive stipends over two consecutive months because of administrative incompetency within the Human Resource Management and Recruitment Office (HRMRO). This challenge has adversely affected the well-being of the affected members as they struggle to purchase their basic needs. This has consequently exacerbated the inhuman conditions the trainees are already subjected to. We therefore demand that unpaid stipends must be settled with immediate effect.

Inhumane Living Conditions
We are gravely concerned with the fact that some academies are overcrowded and do not have hot running water; trainees are therefore compelled to bath with cold water. This challenge is a gross violation of our members’ human rights; hence we demand this crisis must be resolved as a matter of urgency.

Lack of proper nutrition
The standard of nutrition at the academies varies significantly; subsequently, some of the trainees are provided with unpalatable meals which compromise their health.
The variance herein must be addressed immediately, thereby ensuring the provision of a similar nutritional standard for all trainees.

Non-provision of Medical Aid
Lack of medical aid for the trainees serves as clear evidence that the SAPS does not care about the well-being of our members at an entry-level. Our demand here is that all trainees must be put on POLMED medical aid scheme immediately to ensure that their well-being is well taken care of.

Incorrect Placement of Reservists
Reservists within the SAPS are incorrectly placed; resulting in a number of frustrations for members in this category.
Correct placement of reservist trainees

• Duration of reservist training and accreditation

Investigation process for HRMRO
Human Resources Management and Recruitment Office (HRMRO) has proven to be incompetent. This office also demonstrated lack of support and care for the current group of trainees. We then demand that the (HRMRO) be investigated and held accountable for the presented challenges.

In response to protests taking place in Diepsloot earlier today, Minister of Police Bheki Cele tagged along the newly appointed National Police Commissioner Fannie Masemola in his endeavour to try and quell the potentially volatile situation that was brewing outside the Diepsloot Police Station, wherein community members were raising concerns over widespread criminality in the past months, and demanding more police visibility and better resources at the police station.

The Minister stated to protesters that they will immediately be deploying more than 50 police members, including 30 tactical response team (TRT) members, and 16 new vehicles to the area in ensuring that crime-fighting in the area is strengthened.

Under normal circumstances, the station had only 6 vehicles at the service of a community of around 350 000 people living in a mixture of informal and formal settlements demarcated into two wards; ward 95 and 113.

Needless to say, one can only imagine the extent to which police in the area must be overstretched in conducting their work.

It must from the onset be admitted that there are still challenges around the lack of resources, training and other inherent problems within the South African Police Service (SAPS) which the labour union continues to grapple with.

While POPCRU has and continues to consistently take up such issues around the limited staff capacities, the under-resourcing of police stations and their implications for service delivery since time-immemorial, the purpose here is not to dwell into them as they are well documented.

The point is that the issue of crime and violence in our country is not new; it is inherited from the pre-1994 era, but the strategies that have been put in place have not successfully dealt with the problem decisively.

Back in 1996 when the introduction of the National Crime Prevention Strategy (NCPS) which was centred around galvanising the whole of communities and government departments which were required to play an important role in dealing with issues of crime and violence, one would have expected to have seen extensive progress in line with is objectives, however, due to the fragmented approaches towards the safety and security situation in our country, not much has been achieved in this regard.

Somehow, there seems to be less recognition that law enforcement agencies generally do not deal with the underlying issues that cause crime. These underlying issues are dominantly socio-economic in nature, and should at best fall within the competence of government departments. It is in this sense important that all stakeholders, both state and non-state actors, play a role in fighting this scourge of crime.

We need an integrated, holistic approach to safety and security because we cannot arrest our way out of social issues.

At best, the Minister’s visit will only be able to stabilise the situation temporarily, but he and the police are definitely not going to deal with the underlying challenges of poverty, unemployment and other remnants associated with urban centralisation that continue to cause a lot of problems.

Ideally, any policy states the intentions of any institution, and in this instance, we should ask ourselves as to whether policies have been guiding decisions that are made? What is even more pressing in answering this question is the fact that this time around, the institution is broader than just one department; it is government as a while that should be making a commitment in taking up this integrated approach towards dealing with matters of safety and security.

The National Development Plan (NDP) 2030 notes that people living in South Africa should feel safe and have no fear of crime, while women, children and vulnerable groups should also feel protected and have confidence in the criminal justice system of our country.

It further notes that achieving this vision requires cooperation between all departments in the government’s justice, crime prevention and security cluster.

We do note, however, that within the Criminal Justice Cluster, there are still a lot of disparities and things that continue to undermine the operational obligations of the SAPS itself, many of which POPCRU will be taking up both in its upcoming Bargaining & Policy Conference later this month, but also at its widely anticipated Policing Indaba in later months.

No longer can we afford to take reactive approaches as it related to issues of safety and security, as these immediate reactions to events do not give space for proper planning both from a development point of view and from a leadership point of view. This is because the underlying issues in this country are well known to all of us. We all know that the factors driving violence and crime are economic in nature.

Our police men and women are overwhelmed because when remnants of these underlying issues start to boil up, they are expected to respond, all while the causal factors are not police issues.

This has been demonstrated with the situation in the Western Cape where even after numerous initiatives, gangsterism conforms and continues to be in existence.

Just like in Diepsloot today, the Minister often has roadshows in which he visits communities that have been ravaged by serious crime issues, but this hasn’t really helped in any way. These have simply been publicity stunts to say the least, because immediately after leaving the very issues remain intact.

How many times do we have to fail at these approaches in order to realise that we are not responding in the right way?

This is but one of the complex mix of issues that ultimately require conversation both by police and other government departments and agencies.

No amount of visits by any minister will change social situation.

Let’s engage…

Pic: Daily Maveric

JOHANNESBURG – Police and Prisons Civil Rights Union (POPCRU) said it has withdrawn its participation at the Public Service Summit in Johannesburg.

The gathering, initiated by National Treasury and other government departments, is meant to set a roadmap for the public service wage bill, which the state is desperate to curtail.

However, the union – which represents over 150,000 public employees – said the summit was nothing but a perception management process by the employer.

Popcru has announced on Monday afternoon that it pulled out of the summit as Finance Minister Enoch Godongwana and Department of Public Service and Administration Minister Ayanda Dlodlo lead the talks at the summit that will take place until Wednesday.

The union said no tangible results would emanate from the meeting.

In a statement, the organisation explained that the summit was meant to create what it described as a false impression that relations between the employer and workers were good despite what it said was the continued victimisation of workers.

Last year, Popcru and Nehawu refused to sign the public service wage agreement in protest of the non-implementation of the last leg of the 2018 deal.

The government has since won the constitutional court case which was initiated by the unions to challenge this decision.

POPCRU said considering the issues around the 2018 deal and its general lack of faith in the employer, the summit would not improve the living conditions of public servants.

EWN

Minister Thulas Nxesi said the proposed policy aimed to address South Africans’ expectations regarding access to work opportunities given rising unemployment and a perception that foreign nationals are distorting labour market access

Employment and Labour Minister Thulas Nxesi on Monday released the National Labour Migration Policy for public comment.

He said for the first time, government had formulated a comprehensive policy.

It covers labour migration governance and management to and from South Africa.

Nxesi said the proposed policy aimed to address South Africans’ expectations regarding access to work opportunities given rising unemployment and a perception that foreign nationals are distorting labour market access.

He adds the policy together with proposed legislation, will introduce quotas on the total number of documented foreign nationals with work visas that can be employed in major economic sectors such as Agriculture, Hospitality and Tourism as well as Construction.

“This policy will also be implemented by small business intervention and enforcement of a list of sectors where foreign nationals cannot be allocated business visas, and amendment to the Small Businesses Act to limit foreign nationals from establishing SMMEs.”

Nxesi said his department and authorities were stepping up inspections to enforce existing labour and immigration legislation.

The minister adds that the policy goes hand in hand with a proposed Employment Services Amendment Bill, providing a policy framework and the legal basis to regulate the extent to which employers can employ foreign nationals in their establishments while protecting the rights of migrants.

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The Police and Prisons Civil Rights Union (POPCRU) has called for a skills audit following General Khehla Sitole’s axing as National Commissioner.

The union said it is concerned that the trend relating to South Africa’s post-democratic National Police Commissioners has not yielded any tangible successes. 

POPCRU said it has noted the report into the July Unrest and is of the view that the removal of individual personalities is on its own not a sufficient enough remedy in adequately addressing the deep-rooted challenges faced by policing in South Africa.

“Since the year 2000, there have been 8 National Police Commissioners, and with 7 of them serving since 2009. Among the 8, 4 held this position on an acting basis. This has had far-reaching consequences for the SAPS in its entirety and has demonstrated the instability of an organisation that is to this day in the midst of a wider crisis. 

“There is a dire need for a skills audit within the SAPS managerial positions, which will ensure the identification of the gaps in required competencies and assist with getting the relevant interventions to take the work of the organisation to greater 

The Constitutional Court has ruled against public sector trade unions in their bid to force government to honour a wage agreement for 2020, siding with the Labour Appeal Court, which found that the agreement was unlawful. 

At stake was R75.6 billion in backpay, which unions had hoped the court would order must be paid as well as a higher salary baseline going forward.

For Treasury and Finance Minister Enoch Godongwana, the ruling will come as a relief. Had the court ruled against government, the budget framework – tabled only last week – would have been thrown into disarray with an obligation on government to both pay backpay for two years and raise the wage bill for the next three years by a baseline of R37.8 billion.

The Constitutional Court found that as the wage increase had not been budgeted for and Treasury had indicated this to the state’s representatives during the bargaining process, the agreement was unlawful. 

The outcome means that public servants’ wages have been frozen for two years. In 2021, they received a R1 000-a-month cash gratuity as a sweetener. But this amount has not been included in pensionable salaries.

The Police and Prisons Civil Rights Union (POPCRU) has noted the 2022 Budget speech as tabled by the Minister of Finance Enoch Godongwana yesterday. 

As a union organising within the criminal justice cluster, we view his budget as nothing but a continued trend in the strict economic policy measures which have been implemented by his predecessor, with the aim of primarily reducing government spending in the public service by adhering to structural adjustment policies in the form of reforms as dictated to by the International Monetary Fund (IMF) and the World Bank.

It is common cause that the provision of loans always go with conditionalities, consequently with governments asking for loans typically agreeing to comprehensive structural adjustment measures which, by far have demonstrated to have failed the world over. Under the circumstances, this has and will continue to lead to excessive indebtedness, with a further need to attempt to restore our country’s fiscal capacity through new loans and further adjustment measures, further entrapping us in debt.

These have been demonstrated by the preconditioned structural adjustments for debt relief.  

After having unanimously decided to cut the SAPS budget by R26 billion over a three-year period and only adding R8,7 billion, reflecting an initial shortfall of R17,3 billion thus far, this while having committed to halving violent crimes within a decade, we are convinced that the government is intentionally weakening the criminal justice cluster. This latest stance sadly spells doom for the many public service employees in the criminal justice cluster and beyond, who continue to dedicate their services to the South African population while not having received salary increments for the past two years, continue working while understaffed, are killed daily without government interventions and are continuously demoralised over their deteriorating working conditions. 

While awaiting a Constitutional Court judgement on the outstanding PSCBC Resolution 1 of 2018, with specific reference to clause 3.3 which was the last leg of this resolution, which was presented at the Constitutional Court on the 20th of August 2021, a period spanning five months now, we had expected that the Minister’s budget would indicate on intention to resolve this long-standing debacle. Instead, he opted to refer to negotiations as opposed to figures without any indication of finances set aside for this purpose, and therefore clearly undermining any future negotiation prospects as it relates to salary increments. 

Further, an announcement has recently been made that managers within the public service will be getting salary increases and cash incentives, all while workers remain in the dark about their deserved increases.

POPCRU is of the view that the unfolding processes have been fruitless, while openly demonstrating the government’s overlooking of constitutionally recognised processes.

This is a clear indication yet that workers are on their own. It is for this reason that other forms of action need to be considered in taking workers’ interests forward. 

Issued by POPCRU on 24/02/2022

For more information contact Richard Mamabolo on 066 135 4349

The Police and Prisons Civil Rights Union (POPCRU) has noted with distress the unfortunate loss of life which was reportedly ended inside the premises of the Tembisa Provincial Tertiary Hospital yesterday morning.

It is understood that the perpetrator is a member of the South African Police Service (SAPS), whom at the time of this occurrence was in possession of a marked state vehicle, and in full uniform.

Such regrettable acts dent the image of the SAPS as an organisation, and while we abhor and sturdily discourage such acts, their frequency among members, we believe, are partly as a result of the deep-rooted underlying challenges faced by many among the SAPS ranks.

The acts of suicide within and among members of the SAPS are at an alarming level, with an average of at least 20 reported cases over each of the past 2 years, calling for urgent measures by all stakeholders to enhance their roles in curbing this trend as policing is becoming more stressful when compared to other careers or professions.

It is more challenging because most officers are always exposed to incidents that place their lives in danger, and the nature of their work is such that the gruesome scenes they witness bear conditions of persistent mental and emotional stress occurring as a result of injury or severe psychological shock which usually involves the disturbance of sleep and constant vivid recalls of the experience encountered, and therefore resulting in dulled responses to others and the outside world. 

These stress levels affect individuals, their families, the SAPS as an organisation and the community at large, all while a study on South African suicide rates reveals that officers of the SAPS are eleven times more likely to commit suicide than the average South African citizen, and are five times more likely to commit suicide in comparison to police suicide rates internationally. 

Our country consistently struggles with some of the highest rates of violent crime in the world, and pressing human tragedies compete for police attention. This scale and scope of crime and restiveness is enough to put immense pressure on our 177 794 staff capacity that is expected to service an over 60 million population, all of which is complicated by the underlying causes of crime in South Africa, which are embedded in a complex mix of inequality, disenfranchisement and the legacy of apartheid.

This state of affairs is further compounded by the limited chances of promotions, the shortages of resources and unfair practices in relation to compensation, coupled with the reality that there are inconsistencies in leadership, which continues to cause divisions in the law enforcement environment.

All these challenges are faced at a time when the service is constrained by budgetary cuts, which pose serious risks to the wellbeing of police officers, and has demonstrated the correlation between the lack of resources and the demands of the service. 

Their wellbeing cannot be disconnected from the broader environment in which they operate.

Even though the SAPS has for this purpose introduced Employee Health and Wellness (EHW) programs aimed at improving the mental well-being of members by providing psychological, emotional, and personal and work- interventions, much evidence has demonstrated that the programs have dismally failed to achieve their objectives. 

This is allegedly due to reasons that these EHW representatives, usually psychologists and priests, are not doing what is required of them or they do not understand their roles.

Further, there are claims of lack of confidentiality, and that there are no regular visits to victims, and that the services are stigmatised, limiting individuals’ upward mobility within the ranks.

They are reactive in discharging their duties in such a way that they are only seen at the station when there is a problem. They never seem to conduct proactive visits to ensure that the members are coping with their work or personal lives. 

Further, most of the members are not familiar with the EHW services within SAPS.  In this regard, it should be our collective responsibility to ensure we promote these services so members understand their impact in their personal lives and at their workplaces.

As stakeholders, we need to work together in ensuring these services are revived and effective cause if not attended to urgently, they will lead to continuous trauma and stress to employees. 

We need to work to ensure that EHW representatives are not reactive in approach, and they should do more visits to police stations as opposed to inconsistent visits that are only conducted when there are challenges. 

Confidentiality should be strengthened as most police officers feel their information might be compromised

All role players should do more in informing police officers about what the EHWs are aimed at, as it is currently the case that most officers do not fully understand what these programs are aimed at, and for this reason, there is a stigma created around the issue.

There is also a pressing need to deal away with the blurring of responsibilities between the two responsibilities at the top level of the SAPS to avoid the further weakening both the management role of the commissioner and the oversight role of the Minister.

The wellbeing of police officers must be of central importance to any functional police service, both for the simple reason of providing adequate protections to officers, but also because a police service works best when its primary agents feel safe enough to do their job. A police service that feels under threat can find its officers less willing to take on difficult, risky situations, and can also breed mistrust that breaks down essential community relations.

We lastly urge the police management to play their role in attending to stress caused by the lack of resources, staff shortages, unfair disciplinary issues and over-indebtedness among others.

In his state of the nation address back in 2019, President Cyril Ramaphosa assured the nation that government will be pulling all stops to ensure we halve violent crimes within the next decade. This commitment, however, has been immediately undermined by the planned budget cuts.

For any realisation of investments that government is attempting to secure, the preconditions have a lot to do with the security situation of our country, and if not urgently addressed, such objectives are unlikely to be attained. 

Issued by POPCRU on 10/02/2022