Vaccine mandates: consultation

The Employment Court in WXN v Auckland International Airport Limited recently overturned an Employment Relations Authority determination and granted interim reinstatement to an Auckland International Airport (AIA) employee who was dismissed after they declined to be vaccinated.  AIA’s alleged missteps were largely to do with lack of engagement with the employee.

Meanwhile, over the ditch, the Australian Fair Work Commission found that a vaccine mandate by a large Australian mining company was unlawful due to the company’s failure to properly consult with their workers.

In late January 2022 the Employment Court in VMR v Civil Aviation Authority declined an interim reinstatement challenge, but again pointed to arguable flaws regarding consultation for alternatives to dismissal.

It is important not to overstate the reach of these decisions. The key takeaway for businesses is that vaccination mandates can in principle be lawful, but a thorough consultation process, including taking employees’ views seriously and responding to them, is critically important.

We now also have the Covid-19 Public Health Response (Protection Framework) Order 2021, with further specifics around consultation obligations.

WXN v Auckland International Airport Limited

WXN was/is a mechanical maintenance technician at AIA. When the COVID-19 Public Health Vaccinations Order 2021 (Vaccinations Order) was updated to include airside work, Auckland Airport determined that WXN fell under the Vaccinations Order, meaning he needed to be vaccinated. WXN declined to be vaccinated.

AIA gave notice of dismissal to WXN on 1 September 2021, to take effect on 30 September 2021 and he was stood down for that period.

WXN communicated to AIA that he:

  1. had concerns about a medical condition and a possible flare-up of the condition if vaccinated; and
  1. thought his role could be modified, so that his duties would be limited to those falling outside of the scope of the Vaccinations Order.

AIA responded in part to those two points, but still dismissed WXN.

The Court held that AIA arguably failed to adequately engage with WXN on those two points. WXN was not opposed to vaccination in principle and the Court found that a solution may have been possible with more time and AIA obtaining and considering further information from WXN’s GP.

The Court stated: “It is arguable that in circumstances such as the COVID-19 context, where a “no jab, no job” outcome is under consideration, there is an active obligation on the employer to constructively consider and consult on alternatives where there is an objectively justifiable reason not to be vaccinated.”

The Court granted interim reinstatement pending a Hearing.

The Court’s judgment was limited to whether or not interim reinstatement should be granted, so we do not have a definitive answer on whether or not AIA’s process was defective, but the case does highlight that employers should exercise a cautious approach during consultation and must discuss and respond to employees’ concerns in earnest.

CFMEU v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal

The Construction, Forestry, Maritime, Mining and Energy Union (CMFEU) challenged a vaccine mandate imposed by Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (Mt Arthur) (part of the large BHP group).

The Australian Fair Work Commission (Commission) found that Mt Arthur failed to meet its consultation duties under New South Wales health and safety legislation prior to mandating vaccination for its workforce.  These consultation duties are mirrored in sections 58 to 60 of our own Health and Safety at Work Act 2015, so the case is likely to have some precedential value in New Zealand.

Employers proposing changes to health and safety risk management, must seek input from all workers and allow those workers a meaningful opportunity to have their say. Employers must take care to respond to and address workers’ concerns.

The Commission found that Mt Arthur’s mistake was quite simple: it announced its decision to introduce vaccine mandates and then consulted with workers. The Commission scrutinised Mt Arthur’s language when it introduced the mandates.  Mt Arthur had told staff that a ‘Site Access Requirement’ for vaccination, “will be introduced” (which the Commission interpreted as ‘a decision has already been made’).

The takeaways from this case include:

  1. Employers proposing vaccine mandates need to consult with all workers, including contractors, not just employees;
  1. An obvious one – Employers need to be very careful to consult before decisions are made that may affect the continuation of employment. This includes being careful with language when seeking feedback and not presenting a proposal as a predetermined outcome; and
  1. The consultation duties in the Health and Safety at Work Act 2015 are arguably slightly more rigorous than those in the Employment Relations Act 2000 and employers should be cognisant of those duties when proposing any health and safety changes.

Public Health Orders

A new schedule 3A has been inserted into the Employment Relations Act 2000, specifying obligations on employers when dismissing employees due to vaccination status.  The addition is consistent with the above cases. According to the Court in  VMR v Civil Aviation Authority, it is arguably a “specific statement of the legal requirements which existed previously, expressed for the avoidance of doubt in a COVID-19 context”.

There are two scenarios:

  1. An employee is required to be vaccinated in accordance with a public health order and fails to do so; and
  1. An employee is required to be vaccinated pursuant to a risk assessment carried out by the employer and fails to do so.

With scenario (2), the employer must heed the consultation lessons from the above cases when carrying out a risk assessment and must also give the employee reasonable notice specifying a date by which the employee must be vaccinated.

In both scenarios, the employer must ensure that all reasonable alternatives have been exhausted prior to giving notice of dismissal. This includes proactive consideration of available redeployment options, as affirmed recently in VMR v Civil Aviation Authority, and listening to and responding to employee concerns about vaccination, particularly if the employee is not opposed in principle to vaccination but has some reservations and needs more information.

In our view, employers are likely to be able to substantively justify vaccine mandate decisions, based on a public health order requirement or a thorough and well-reasoned risk assessment. We think that the Authority and Court will continue to focus their attention predominantly on scrutinising the consultation process.

Assistance

This is a difficult area for employers to navigate, particularly as both legislation and case law evolves. We are on hand to assist employers throughout, so get in touch with one of our team if you are contemplating, or already going through, a process regarding vaccine mandates.

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