No Jab, No Job: Authority to Determine Justifiability

It is arguably the (employment law) question of 2021: can employers terminate their employees for choosing to remain unvaccinated?

In GF v OO, the parties applied to have their dispute on this exact issue removed to the Employment Court, but the Authority member rejected the application.

A quick rundown of the facts:

GF worked as a temporary border worker at a port. Her role was, as described in a letter of appointment, “to assist with the temporary additional staffing required to manage and reduce the risk of COVID-19 entering New Zealand via the maritime pathway, and to meet additional requirements of the COVID-19 Public Health Response (Maritime Border) Order 2020, which is a temporary order.”

8 April 2021: the COVID-19 Public Health Response Vaccination Order 2021 came into effect on midnight 30 April, requiring ‘front-line’ workers to be vaccinated in order to continue being employed at border facilities.

9 April 2021: OO emailed staff, informing them that:

  • Conversations would be initiated with those who were not vaccinated;
  • Health and safety audits would be performed in relation to the risk of exposure in each role; and
  • Redeployment would be considered.

29 April 2021: GF contested the results of the audit, which determined her role required the employee to be vaccinated.

30 April 2021: GF is issued with a letter terminating her employment with notice.

GF now seeks interim reinstatement. GF puts forth two arguments:

  1. Her employer was unreasonable to insist that she get vaccinated or face dismissal; or
  2. The requirement for her to be vaccinated altered the terms and conditions of her role to the extent that she should have been declared redundant.

The Authority Member has alluded that this judgment will be a priority. Of note from his preliminary discussion, he states that:

  • Arguably, there were no changes to GF’s terms and conditions of employment
  • The situation is analogous to that where an employee cannot continue ongoing employment due to loss of a requisite driving licence or professional accreditation
  • The case will be contained to its contextual setting and should not be considered a ‘cause celebre’ for all border workers who have eschewed vaccinations
  • The question is simply whether the actions taken by the employer were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred

The matter will now proceed to an investigation meeting. An outcome is on the near horizon.

Contact

Fiona McMillan is a Lane Neave Partner in the Employment teamFiona McMillan
Partner, Lane Neave

t +64 9 300 6264
m +64 27 351 2000
e (click to email)

Abby Shieh
Solicitor, Lane Neave

t +64 9 300 6263
e (click to email)