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[2026] ZALCCT 119
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Richards v Santam Limited (C614/2023) [2026] ZALCCT 119 (31 July 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no: C614/2023
In
the matter between:
AURELIA
SOMORA RICHARDS
Applicant
and
SANTAM
LIMITED
First Respondent
COMMISSION
FOR CONCILIATION, ARBITRATION
AND
MEDIATION
Second Respondent
COMMISSIONER
MXOLUSI NDULZWANA N.O. Third Respondent
Heard:
18 September 2025
Delivered:
31 July 2026
Summary:
Applicant was employed
by First Respondent (“Santam”). In terms of the
then-applicable COVID protocols, in order to
be allowed to enter the
workplace Santam’s vaccination policy required employees to
either be vaccinated, alternatively provide
regular negative PCR
Covid tests should they opt not to be vaccinated.
Applicant elected not
to be vaccinated and provided regular negative PCR tests until 14
April 2022 when she failed to submit a negative
PCR test and failed
to attend work the next day, for which she was issued with a written
warning valid for 6 months.
Applicant thereafter
complied with the requirement to submit a negative PCR test until 6
June 2022, when she again failed to do
so and failed to report for
duty for the period between 7 and 14 June 2022. On 17 June 2022
Applicant received a final written
warning valid for 12 months for
not providing a negative PCR test, failing to report for duty from 7
to 14 June 2022, and failing
to attend her disciplinary hearing on 15
June 2022.
Applicant remained
absent from work and on 8 July 2022 she was issued with a notice to
attend a disciplinary enquiry in terms of
which she was required to
answer allegations of misconduct. Subsequent to a hearing, Applicant
was found guilty and dismissed for
misconduct (gross insubordination
in refusing to follow a direct instruction to return to work) and
dishonesty.
In an opposed
application for the review and setting aside of the Arbitration Award
issued by the Third Respondent in which he found
that the dismissal
of the Applicant was fair, Applicant raised three grounds for review:
Firstly, the
Commissioner misconceived the nature of the enquiry and committed a
material error of law by dealing with the matter
on the basis of
misconduct as opposed to one of incapacity;
Second, even if the
Commissioner were correct in dealing with the matter as one of
misconduct, he failed to properly apply the law
as it pertains to
misconduct since Applicant’s failure to submit a negative PCR
test was neither wilful nor deliberate, but
caused by her inability
to afford the cost thereof; and
Thirdly, the
Commissioner failed to properly apply the law concerning dishonesty,
since the allegations made by Applicant were made
on the basis of
what she genuinely perceived to be unfair treatment by Santam and in
the absence of any intention to deceive.
As to the first ground
of review, Applicant failed to provide any convincing evidence to
justify her grounds for electing not to
receive the vaccination.
Having opted to provide regular PCR tests at her own expense, her
subsequent financial incapacity did
not amount to a disability or
incapacity as envisaged in the COVID protocols, and the Commissioner
was correct in characterising
the dispute as one of misconduct.
Accordingly, there had been no material error of law and the first
ground of review had to fail.
As to the second
ground of review, it was common cause that the Applicant was aware of
the vaccination policy and did not dispute
its lawfulness,
applicability, or reasonableness. The evidence established that she
had in fact complied therewith for a substantial
period. Applicant
refused to be vaccinated on religious grounds but did not provide any
convincing evidence to justify this position.
That Applicant
subsequently became unable to pay for PCR tests was regrettable, but
in the circumstances of the case could not
be interpreted as some
form of incapacity or disability. Applicant did not present herself
for duty in the period between 17 and
28 June 2022, leading to the
conclusion that her conduct was both wilful and persistent, amounting
to a serious challenge to the
employer’s authority.
Accordingly, the Commissioner’s conclusion that Applicant had
knowingly failed to comply with
a valid or reasonable instruction to
return to work, amounting to gross insubordination, could not be
faulted, and was one which
a reasonable decision-maker could have
reached on the evidence available. Accordingly, the second ground of
review had to fail.
As to the third ground
of review, Applicant’s referral of an unfair labour dispute to
the CCMA made serious allegations of
favouritism, inconsistent
application of the vaccine policy, unequal treatment of employees in
general, discrimination, racial
discrimination, unfair treatment and
abusive workplace practices.
Applicant was unable
to substantiate any these allegations in evidence, and the only
conclusion which could be drawn from the available
evidence was that
the allegations were made with no other purpose than to achieve the
desired outcome of success in her unfair
labour practice dispute as
against the employer. In the premises, the Commissioner could not be
faulted for finding that Applicant
had been dishonest. Accordingly
the third ground of review had to fail.
The application for
review was dismissed with no order as to costs.
JUDGMENT
ABRAHAMS,
AJ
Introduction
[1]
This is an opposed application for the review and setting aside of an
Arbitration Award (the Award) issued by the Third
Respondent (the
Commissioner) on 18 October 2023 in which he found that the dismissal
of the Applicant was fair.
Background
[2]
Applicant was employed by First Respondent (Santam) in the capacity
of Service Consultant as from 1 May 2014. Her role
required her,
together with another Service Consultant, to,
inter alia,
assist Relationship Managers with their service duties, answer
telephone calls, prepare broker packs, and deal with walk-in clients.
[3]
With the advent of COVID-19 in 2020 and the resulting hard lockdown,
Santam’s employees were initially required
to work from home.
As the COVID-19 period continued, the Applicant
was required to return to the office every alternate week. The
office operated
on a reduced staff complement who were rotated
weekly
.
[4]
Santam then issued an instruction to all
office-bound employees, informing them that, as from 1 March 2022,
they would all be required
to return permanently to the office. The
Applicant was one of these office-bound employees. Santam had a
vaccination policy which
required employees to either be vaccinated,
alternatively to provide regular negative PCR Covid tests, should
they opt not to be
vaccinated.
[5]
The Applicant elected not to be vaccinated
and opted to provide Santam with regular negative PCR tests, which
she duly did during
March and April 2022. Applicant had in the
meantime applied to be exempted from the provisions of the
vaccination policy, which
application was rejected.
[6]
On
14 April 2022 the Applicant failed to submit a negative PCR test, and
did not attend work on 15 April 2022, for which she was
issued with a
written warning valid for six months
[1]
.
Upon receipt of the written warning the Applicant requested her
immediate supervisor to afford her the opportunity to either work
from home, alternatively to revert to the rotational basis which
Santam had employed during the early months of the COVID-19
pandemic.
This request was declined on the basis of the
operational needs of the office.
[7]
Applicant thereafter complied with the requirement to submit a
negative PCR test until 6 June 2022, when she again failed
to do so.
The Applicant did not report for duty from 7 to 14 June 2022, nor did
she attend a disciplinary hearing on 15 June 2022.
[8]
Accordingly,
on
17 June 2022, the Applicant received a final written warning valid
for 12 months for not providing a negative PCR test, for failing
to
report for duty from 7 to 14 June 2022, and for failing to attend her
disciplinary hearing on 15 June 2022.
[2]
[9]
It must be noted that, on 24 June 2022, Santam issued a notice to its
employees which indicated that the submission of
a negative PCR test
would no longer be a requirement.
[10]
However, it appears that the Applicant continued to remain absent
until at least 28 June 2022, and on 8 July 2022 the
Applicant was
issued with a notice to attend a disciplinary enquiry in terms of
which she was required to answer the following
allegations of
misconduct:
‘
(a) Gross
insubordination in that from 6 to 28 June 2022 you have been grossly
insubordinate when you refused to follow direct
instructions to
return to work;
(b) Absent from
work without authorisation from 6 to 28 June 2022; and
(c) Dishonesty in
that you provided false and defamatory information about Santam and
[11]
Applicant pleaded not guilty to these allegations, but was,
subsequent to a hearing, found guilty of the charges against
her and
dismissed with effect from 30 August 2022.
[12]
The Applicant then referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration
(CCMA) which
culminated in the Award presently under review.
The
award
[13]
The
Commissioner considered the charges and held that the first two
charges depended on the same factual basis and would therefore
be
considered as one charge, i.e gross insubordination in refusing to
obey an instruction to return to work, alternatively being
absent
from work without authorisation.
[4]
[14]
Furthermore,
the Commissioner held that the charge of gross insubordination for
the period between 6 June and 16 June 2022 was
res
judicata
,
insofar as a final written warning had been issued in this regard on
17 June 2022.
[5]
[15]
The
Commissioner proceeded to consider the Applicant’s reasons for
not submitting any negative PCR tests for the period between
17 and
28 June 2022, namely that she could not afford the tests (which, it
is common cause, cost R150.00 each), and rejected them
[6]
,
finding that the Applicant had knowingly failed to comply with a
valid and reasonable instruction to return to work and was therefore
guilty of gross insubordination.
[7]
[16]
The
Commissioner proceeded to consider the charge of dishonesty and found
that the employee had supplied false and defamatory information
in
her referral to the CCMA, thereby bringing the name of her employer
into disrepute.
[8]
[17]
Accordingly,
the Commissioner concluded that Applicant’s lack of remorse (in
making false and defamatory statements about
her employer even after
they were proved to be untrue), persistence in peddling false
information and failure to return to work
after 17 June 2022
justified her dismissal, and that the continued employment
relationship had been rendered intolerable.
[9]
The
review application
[18]
The primary
issue to be determined in this review
[10]
is whether the Commissioner committed a reviewable irregularity
when
he determined that “
the
dismissal of Ms Aurelia Semora Richards by Santam Ltd on 31 August
2023 is fair and Ms Aurelia Semora Richards is not entitled
to any
relief
”.
[11]
[19]
Ultimately,
the Court must ascertain “
whether
the Arbitrator considered the principal issue before him/her,
evaluated the facts presented at the hearing, and came to
a
conclusion that is reasonable
”.
[12]
Put differently: “
a
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator
”.
[13]
[20]
The Applicant has raised various grounds for review, which may
conveniently be summarized as follows:
20.1. Firstly, the
Commissioner misconceived the nature of the enquiry and committed a
material error of law by dealing with
the matter on the basis of
misconduct as opposed to one of incapacity;
20.2. Second, even
if the Commissioner were correct in dealing with the matter as one of
misconduct, he failed to properly
apply the law as it pertains to
misconduct since Applicant’s failure to submit a negative PCR
test was neither wilful nor
deliberate, but caused by her inability
to afford the cost thereof; and
20.3. Thirdly, the
Commissioner failed to properly apply the law concerning dishonesty,
since the allegations made by Applicant
were made on the basis of
what she genuinely perceived to be unfair treatment by Santam and in
the absence of any intention to
deceive.
[21]
In regard to the first ground of review, Applicant’s argument
is based on the following line of reasoning:
21.1. Santam’s
vaccination policy
required employees to either be
vaccinated, alternatively to provide regular negative PCR COVID-19
tests, should they opt not to
be vaccinated;
21.2.
Applicant
declined to be vaccinated on the basis of her religious beliefs as a
Christian;
21.3.
Applicant
therefore complied with the vaccination policy by providing regular
PCR tests until she could no longer afford to do so;
21.4.
Applicant’s
financial incapacity therefore resulted in her effectively being
rendered incapable of complying with the vaccination
policy;
21.5.
The
matter should therefore have been dealt with on the basis of
incapacity rather than misconduct.
Analysis
of the law
[22]
The
Code of Good Practice: Managing Exposure to SARS-COV-2 in the
Workplace, 2022
[14]
(“the
Covid Code”) provided,
inter
alia
,
that “
if
an employee refuses to be vaccinated, the employer must… take
steps to reasonably accommodate the employee in a position
that does
not require the employee to vaccinated
”.
[15]
[23]
‘Reasonable
accommodation’ is defined in the Covid Code as “
any
modification or adjustment to a job or to the working environment
that will allow an employee who fails or refuses to be vaccinated
to
remain in employment and incorporates the relevant portions of the
Code of Good Practice on Employment of People with Disabilities
published in terms of the Employment Equity Act, 1999 (Act 97 of
1999)
”.
[16]
[24]
I was
referred in argument to the Code of Good Practice on Employment of
People with Disabilities
[17]
as somehow being applicable to this matter. However, since section 1
of the Employment Equity Act
[18]
defines 'people with disabilities' as “
people
who have a long-term or recurring physical, mental, intellectual or
sensory impairment which, in interaction with various
barriers, may
substantially limit their prospects of entry into, or advancement in,
employment”,
to
the extent that I am invited to consider Applicant’s inability
to pay for PCR tests as resulting in some form of disability
as
defined
,
I must respectfully decline.
[25]
Crucially, the lawfulness and applicability of Santam’s
vaccination policy was not in dispute between the parties.
[26]
Annexure C
to Santam’s vaccination policy incorporated similar provisions
to those quoted from the Covid Code above
[19]
,
although it is noted that the vaccination policy refers to an
employee who “
refuses
to be vaccinated on any constitutional or medical grounds
”.
That such constitutional or medical grounds must be valid is an
inescapable adjunct to the above.
[27]
The right
to freedom of religion, thought, and belief is enshrined in our
Constitution
[20]
. However, in
order to invoke this right it is incumbent on the employee to
establish a clear basis upon which they rely on the
right and to
demonstrate how vaccination would infringe this right.
[28]
Clearly, if
an employee’s religion proscribes vaccination, then a mandatory
vaccination policy would infringe this right;
however, the employee
is required to prove that he sincerely subscribes to a particular
religion and that the religion forbids
vaccination. In the absence of
such evidence, the objection to taking the vaccination based on
Constitutional grounds cannot be
sustained.
[21]
[29]
There is no evidence to doubt the sincerity of the Applicant’s
religious beliefs; however, she failed to provide
any convincing
evidence to justify the proposition that Christianity forbids
vaccination.
[30]
An
objection to taking the vaccination that lacks substantiation or
relies on conspiracy theories is unlikely to be found valid.
[22]
[31]
In
Mulderij
v Goldrush Group
[23]
,
the employee refused to be vaccinated on religious grounds. The
Commissioner found that she had incapacitated herself, and that
her
dismissal for incapacity was therefore fair.
[32]
The Commissioner quoted a memorandum from the Deputy Judge-President
of the Gauteng Division of the High Court (as he
then was), Judge
Roland Sutherland, on the issue of vaccinations in the workplace:
‘
The proper
question is whether or not an individual is sufficiently civic minded
to appreciate that a duty of care is owed to colleagues
and others
with whom contact is made to safeguard them from harm. If one wishes
to be an active member of a community then the
incontrovertible
legitimate interest of the community must trump the preferences of
the individual.’
[24]
[33]
It would therefore seem that, even if the Commissioner had treated
the matter as one of incapacity, in the circumstances
of this case a
dismissal for incapacity would have been justified.
[34]
Be that as
it may, in the present matter the Commissioner was correct in finding
that the Applicant was not dismissed for refusing
to vaccinate.
[25]
T
he
Applicant’s subsequent financial incapacity did not amount to a
disability or incapacity as envisaged in the COVID protocols,
and the
Commissioner was correct in characterising the dispute as one of
misconduct. Accordingly, there was no material error of
law and the
first ground of review must fail.
[35]
As to the second ground of review, it is common
cause that the Applicant was aware of the vaccination policy and did
not dispute
its lawfulness, applicability, or reasonableness. The
evidence establishes that she did, in fact, comply therewith for a
substantial
period. The Applicant refused to be vaccinated on
religious grounds but did not provide any convincing evidence to
justify this
position.
[36]
That the Applicant subsequently became unable to
pay for PCR tests is regrettable, but in the circumstances of this
case it is beyond
the bounds of reasonableness to interpret this as
some form of incapacity or disability.
[37]
It is also common cause that the Applicant did not
present herself for duty in the period between 17 and 28 June 2022,
even if only
to be refused entry. One can only conclude that her
actions in this regard were both wilful and persistent, and amounted
to a serious
challenge to the employer’s authority. Again, the
reasonableness of the vaccination policy was not seriously disputed.
[38]
Having made her decision to refuse the vaccine,
Applicant was unable to provide any convincing evidence that her
reasons for doing
so were justifiable, and she cannot escape the
consequences of that choice. Freedom of choice is not freedom from
consequence.
[39]
Given that Applicant was subject to a final
written warning issued on 17 June 2022, the Commissioner’s
conclusion that the
Applicant had knowingly failed to comply with a
valid or reasonable instruction to return to work which amounted to
gross insubordination
cannot be faulted and is one which a reasonable
decision-maker could have reached on the evidence available.
[40]
Accordingly, the second ground of review must
fail.
[41]
As to the
third ground of review, both parties, in their respective heads of
argument, cited the principle enunciated in
Nedcor
Ltd v Frank and Others
[26]
to the effect that “
Dishonesty
entails a lack of integrity or straightforwardness and, in
particular, a willingness to steal, cheat, lie or act fraudulently
.”
[42]
Ms Schensema, for Applicant, argued strenuously that negligence,
however gross, can never constitute dishonesty, since
some form of
intention is required to be dishonest. In addition, it was submitted,
an important distinction needed to be made between
an allegation
which is found to be untrue, as opposed to an allegation which is
dishonest. The distinction is a fine one, but in
the circumstances of
this case it is ultimately a distinction without a difference.
[43]
The case of
Nedcor v
Frank
,
upon which both parties relied, was decided on the basis of whether
the conduct of the employees could be said to have destroyed
the
relationship of trust between them and the bank. Finding that,
insofar as the bank and its customers was concerned, no intention
to
steal, cheat, lie or act fraudulently was manifest, the Labour Appeal
Court (LAC) held that it could not.
[27]
To the contrary, the employees’ contention that they wished to
shield the bank from the wrath of airport management was held
to be
entirely plausible.
[28]
[44]
In the present matter, Applicant’s referral of an unfair labour
dispute to the CCMA made serious allegations of
favoritism,
inconsistent application of the vaccine policy, unequal treatment of
employees in general, discrimination, racial discrimination,
unfair
treatment and abusive workplace practices.
[45]
The Applicant was unable to substantiate a single one of these
allegations in evidence, and it is difficult not to conclude
that
these very serious allegations were made with no other purpose than
to achieve the desired outcome of success in her unfair
labour
practice dispute as against the employer. No other intention can be
gleaned from the evidence available at the arbitration.
[46]
To the extent that some form of intention is required for there to be
dishonesty, therefore, the Commissioner cannot
be faulted for finding
that there was dishonesty on the part of Applicant in making the
aforementioned allegations, since no other
intention was evident.
[47]
In the premises, the third ground of review must also fail.
[48]
Accordingly, the following order is made:
Order
1. The application
for review is dismissed.
2. There is no
order as to costs.
R.
Abrahams
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Attorney: H Schensema
Instructed
by:
Cohan- Harper Madikizela Attorneys
For
the Respondent:
Advocate: Brenton Joseph / Attorney: Nasheetah Smith
Instructed
by:
Werksmans Attorneys
[1]
Record of Proceedings (‘R’) p 443
[2]
R p 442
[3]
R p 305
[4]
Pleadings (‘P’) pp 20 – 21, Award par 18 - 22
[5]
P p 21, Award par 23 - 26
[6]
P p 27 – 28, Award par 56 - 58
[7]
P p 29, Award par 66 - 67
[8]
P p 31, Award par 74 - 76
[9]
P p 32 – 33, Award par 78 - 82
[10]
See:
Head
of Department of Education v Mofokeng and Others
(2015) 36 ILJ 2802 (LAC) at para 30. See also
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as amicus curiae)
(2013) 34 ILJ 2795 (SCA) at para 25;
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commissioner for
Conciliation, Mediation and Arbitration and Others
(2014) 35 ILJ 943 (LAC) at paras 16 to 18.
[11]
P
p 34, Award par 84
[12]
Goldfields
Mining
(id fn 10) at para 16.
[13]
Herholdt
(id fn 10) at para 25. See also
Sidumo
and another v Rustenburg Platinum Mines and others
2008 (2) SA 24
(CC) at para 110.
[14]
Published
in
GN
46043, 15 February 2022
[15]
Code
of Good Practice: Managing Exposure to SARS-COV-2 in the Workplace,
2022, Clause 12(4)
[16]
Ibid
,
Clause 3(1)
[17]
Published in GG 39383 on 9 November 2015
[18]
Act 55 of 1988
[19]
R p 414, par 5(2) and 5(3)
[20]
The Constitution of the Republic of South Africa, 1996.
[21]
See:
Kok
v Ndaka Security and Services
(2022) 43 ILJ 958 (CCMA).
[22]
See:
Dreyden
v Duncan Korabie Attorneys
(2022) 43 ILJ 1405 (CCMA) at paras 80 and 85.
[23]
(2022) 43 ILJ 671 (CCMA)
[24]
See
Dreyden
(id fn 22) at para 32.
[25]
Pp 22 – 23, Award at para 29 and 33.
[26]
(2002)
23 ILJ 1243 (LAC) at para 15.
[27]
Ibid
[28]
See
Nedcor
v Frank
(id
fn 26) at para 14.