No jab, no job: what does the authority have to say?

So far, we have three decisions from the Employment Relations Authority (Authority) on whether you can terminate someone’s employment because they have not received their COVID-19 vaccine.

9 September 2021: GF v New Zealand Customs Service

GF was employed by NZ Customs Service (Customs) as a Border Protection Officer at a maritime port. Customs undertook a health and safety risk assessment and determined that GF’s role could only be performed by a vaccinated worker. GF refused to get vaccinated. After lengthy consultation with GF, as well as exploring redeployment options, Customs ultimately dismissed GF. On the day of her dismissal, the COVID-19 Public Health Vaccinations Order 2021 (Vaccinations Order) came into effect, which prevented GF’s role being performed by anyone other than a vaccinated worker.

GF challenged Customs’ decision in the Authority, claiming that there were no health and safety reasons justifying the requirement that her role must be performed by a vaccinated worker. Customs argued that, because of the mandate imposed by the Vaccinations Order, GF’s dismissal was justified. Customs also argued that prior to the Vaccinations Order coming into effect, the health and safety assessment they had undertaken legitimately justified her dismissal. The Authority upheld both of Customs’ arguments, ultimately finding that its decision to dismiss GF was one that could be made by a fair and reasonable employer.

GF has since appealed this determination to the Employment Court.

1 October 2021: VMR v Civil Aviation Authority

This ongoing case involves four Aviation Security Officers who were employed by the Civil Aviation Authority of New Zealand (Civil Aviation) at an international airport. When the Vaccinations Order was updated to include airside work, Civil Aviation determined that the Officers were frontline workers, meaning they needed to be vaccinated if they were to continue in their roles. Notwithstanding this, the Officers refused to get vaccinated. After lengthy consultation, as well as exploring redeployment options, the Officers were dismissed.

The Officers challenged their dismissal in the Authority, arguing that they did not fall under the Vaccinations Order because they had no contact with international passengers. Accordingly, the Officers sought interim reinstatement. In the interim hearing, Civil Aviation argued that the Officers did fall under the Vaccinations Order, because they could be required to work in parts of the airport used by international passengers. Civil Aviation also showed evidence of their consultation with the Officers prior to dismissal, as well their genuine consideration of redeployment options.

The Authority sided with Civil Aviation, ultimately declining the Officers’ application for interim reinstatement. In doing so, the Authority gave weight to Civil Aviation’s argument that allowing the unvaccinated Officers to return to work would unfairly render Civil Aviation in breach of the Vaccinations Order and their obligations under the Health and Safety at Work Act 2015 (HSWA). The Authority recognised the risk of penalties being awarded against Civil Aviation if they breached these enactments.

The Authority is yet to make a substantive determination as to whether the Officers’ dismissals were justified.

7 October 2021: WXN v Auckland International Airport Limited

WXN was employed by Auckland Airport as a Mechanical Maintenance Technician Team Lead. When the Vaccinations Order was updated to include airside work, Auckland Airport determined that WXN was a front-line worker, meaning he needed to be vaccinated. WXN refused to get vaccinated.

As a result, Auckland Airport informed WXN that he would be dismissed once the amended Vaccinations Order took effect on 30 September 2021. On 21 August 2021, however, Auckland Airport informed WXN that it had updated its risk assessment in light of the health risk posed by the Delta outbreak and it was no longer feasible to allow him to keep working. WXN was suspended on pay effective immediately, despite his dismissal not taking effect for another week and a half.

WXN brought a claim in the Authority for unjustified disadvantage, namely that Auckland Airport’s decision to suspend him was not fair and reasonable and that Auckland Airport did not follow a fair and reasonable process in terminating his employment. WXN sought interim reinstatement.

Recognising the significant risk to public health if WXN was reinstated, the Authority declined to order interim reinstatement. However, the Authority found that WXM has a seriously arguable case for unjustified disadvantage in respect of:

  • whether Auckland Airport were able to lawfully suspend WXN prior to the Vaccinations Order taking effect, including suspending him when other unvaccinated employees in similar roles remained working;
  • whether Auckland Airport sufficiently engaged with WXN about the Vaccinations Order; and
  • whether Auckland Airport properly turned their mind to redeployment options.

The Authority is yet to make a substantive determination as to whether WXN was subjected to unjustified disadvantage.

Key takeaways

While further litigation concerning mandatory employee vaccination is inevitable, a number of key takeaways can be extracted from the Authority determinations to date:

  • Employers must perform a thorough health and safety risk assessment and seek employee input on that assessment.
  • Employers must consider all alternatives before dismissing an unvaccinated employee. Exploring redeployment opportunities or other changes to the employee’s work arrangements is crucial.
  • As with any decision to dismiss, employers must ensure a fair process is undertaken. Central to this duty is consulting with the employee. In doing so, employers should identify and discuss the employee’s reasons for refusing vaccination.
  • Where the role of an unvaccinated employee falls under the Vaccinations Order, the Authority is acutely aware of the risks to public health if that employee is allowed to remain in that role. The Authority is also sympathetic to the risk of penalties being awarded against an employer that breaches the Vaccinations Order and HSWA by allowing an unvaccinated employee to remain in said role.
  • A case challenging the dismissal of a worker not covered by the Vaccinations Order is yet to be litigated. In other words, we are yet to see a case where an employer relies solely on a health and safety risk assessment to dismiss an unvaccinated employee. Notwithstanding that, GF v NZ Customs Service, shows that a thorough and well-reasoned health and safety assessment can form the basis for validly requiring that a role can only be performed by a vaccinated worker. Employee consultation is crucial. WorkSafe has recently published updated guidance for employers undertaking this assessment, which can be found here.

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