Boteng Maluke

Boteng Maluke Employment Lawyer February 2023 March 2023

Labour Lawyers attorney in Johannesburg Labour Law specialists #employment law 

Boteng Maluke is willing to take on any matter. She is a bright, astute upcoming attorney who is willing to learn. She takes on life's experience. She has an excellent temperament and is conscientious and forthright. Give her your matter, and she will take it to the next level.

Arbitrations for R3000/day phone me on my cell to find out how 0640028993

Mandatory Vaccinations in the Workplace - Questions and Answers

• 1. Is it discrimination if I refuse entry to someone because they are not vaccinated?

  Under disability discrimination laws, it is unlawful to discriminate against a person on the grounds of that person’s disability by refusing to allow that person access to or use of a premises that the public is allowed to use.

  There is an argument that if a person who is unable to be vaccinated against COVID-19 for medical reasons is refused entry to premises, they would be discriminated against on the grounds of disability (this does not apply where a person simply chooses not to be vaccinated against COVID-19 without a medical exemption).

  Where a person holds a valid medical exemption in the form currently required by the various jurisdictions and is refused access to premises, they could argue that they have been discriminated against on the grounds of the medical condition/disability.

  2. Can I ask a candidate if they are vaccinated during an interview?

  The short answer is no.

  Only where an employer can establish that being vaccinated is an inherent requirement of the position to be filled and the employer can contractually require that a prospective employee be vaccinated against COVID-19, they may inquire about the prospective employee’s vaccination status/seek proof or evidence of same.

  Employers should be mindful of the discrimination principles to ensure that they do not fall foul of the employment equity act and other anti-discrimination laws.

  3. Is it discrimination if I refuse to employ someone because they are not vaccinated?

  In circumstances where adjustments to the position to accommodate the unvaccinated employee would cause unjustifiable hardship to the employer, it would not be considered discrimination, and a decision could be made not to employ someone because they are not vaccinated. Additionally, it would also not be discrimination where being vaccinated is an inherent requirement of the role (see question 6 above) or has been mandated in that workplace by the Government. Such circumstances would provide a valid defence to any claim of unlawful discrimination.

  4. If the employer mandates vaccinations, can he be liable to the employee if they suffer illness or medical issues as a result of getting the vaccine?

  Only where you are seen to have failed to follow due process. Damages are difficult to prove in employment law.

  Under Worker’s Compensation laws, an employer may be liable for a ‘personal injury’ arising out of employment. However, ‘injury’ does not typically include mild and temporary symptoms like headache, fever and chills as common sides effects of the vaccine. Therefore, the extent of an employer’s liability will be case dependent.

  5. If an employee contracts COVID-19 at work, am I liable to them for any damages they suffer?

  Worker’s Compensation

  Employees will be entitled to worker’s compensation if they contract COVID-19 while carrying out activities induced or encouraged by their employer (for example, travel). Therefore, employers must be mindful when telling employees to enter high-risk COVID-19 settings.

  Work Health and Safety

  If an employee contracts COVID-19 due to an employer’s failure to provide a safe working environment, the employer may be liable for workplace health and safety laws breaches. Such liability may arise in circumstances where an employer disregards public health advice.

  6. Can I require my staff to work from home or where they are working from home to return to the office?

  Generally, employers can require staff to return to the office so long as it is a lawful and reasonable request which it is in most instances. The only time it would be unlawful is if the Government returned us to level 4 or 5. Also, the employer must have taken adequate steps to provide a safe working environment to safeguard employees from COVID-19.

  7. Where can I get assistance?

  Labour department portholes can be accessed by employees further.

  Employment practitioners and consultants offer workplace advice to employers to ensure they adhere to public health orders/directions, registered agreements/workplace instruments and work health & safety regulations. 

• Costs of litigation in the Labour Court

In employment matters, costs do not follow the result. A court is conferred with a discretion and is required to consider the considerations set out in s 162 of the LRA when exercising it. In addition, the court is required to perform a balancing act, whereby it strikes a fair balance between, on the one hand, not unduly discouraging prospective litigants in the employment sector from approaching the court in pursuit of relief and, on the other hand, permitting prospective litigants from bringing frivolous cases before the court. Finally, a court must ensure that it exercises discretion judicially before mulcting a party with an adverse costs order.

But the above does not apply to Urgent Applications where the High Court policies on costs are applied #employmentlaw #costs #LRA

• Workplace Bullying

“The defining feature of workplace bullying allegations is the power imbalance between the bully and their target, which is exacerbated if the employer is also the bully. Mediation in such conditions is likely to reinforce the dynamic and worsen the situation, as it would in the domestic violence context already discussed. Meanwhile, reaching a constructive outcome jointly between parties is the hallmark of mediation – that is, it involves a compromise and a desire to settle. A bully is unlikely to have this aim but instead views the mediation as an opportunity to manipulate the target further. Furthermore, the target is likely to be further disempowered and unlikely to reach a favourable outcome because of a lack of capacity to negotiate with the bully.”