ERA determination on vaccination

The Employment Relations Authority (Authority) has now dealt with two cases where employers have dismissed employees whose roles are covered, or allegedly covered, by the Vaccinations Order but chose not to be vaccinated. These determinations confirm that the employer, even where the Vaccinations Order applies, must still comply with good faith obligations, ensure a fair process is followed and consider alternatives to dismissal such as redeployment.

The COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order) requires specified groups of border workers to be vaccinated to undertake ‘certain work’. The Vaccinations Order came into force on 1 May 2021 and was amended on 14 July 2021 (Amended Order) to cover a wider range of border workers. It currently applies to all managed isolation and quarantine facilities workers, most workers at airports and ports and aircrew members who fly internationally.

While the Vaccinations Order mandates that unvaccinated workers cannot work in specific roles, employers must still adhere to their responsibilities and obligations under New Zealand employment legislation when addressing the Order’s requirements in relation to their employees.

GF v New Zealand Customs Service [2021] NZERA 382

In October 2020, GF was employed by the New Zealand Customs Service (Customs) in a border protection role to assist with the Covid-19 response at a maritime port facility. The role was initially envisioned to be temporary and to end in December 2021. Between January - March 2021, Customs distributed information and advice about the Covid-19 vaccination to its staff, including that vaccination was voluntary. Customs indicated that its expectation was that frontline border workers would be vaccinated and referred to border staff being considered a vaccine priority group by the Government and being granted first access to the vaccine.

In late March and early April, the Government made public announcements of its policy intention to mandate that ‘front-line border workers’, including those working at ports, must be vaccinated. The Prime Minister stated that if these workers refused to be vaccinated, they should be moved into ‘low risk’ roles by 12 April 2021. By this time, most relevant staff at Customs had already been vaccinated. Following the announcement and after undertaking a risk assessment of all relevant roles, Customs engaged with the remaining, relevant unvaccinated staff, including GF, who maintained that she would continue to be unvaccinated but did not provide a specific reason for doing so.

On 21 April 2021, Customs invited GF to attend a meeting regarding the proposed termination of her employment. The letter advised that her vaccination status was unverifiable, and it was determined on health and safety grounds that her work had a high risk of exposure to Covid-19 and should be done by workers who are vaccinated. The letter stated that other work options had been considered and no suitable redeployment options were available.  The meeting was scheduled for 29 April 2021 and before the meeting, Customs informed GF of the promulgation of the Vaccinations Order and that it was set to come into effect on the following day at 11:59pm. Customs stated its view was that GF would be an ‘affected person’ within the scope of the Order and she could not continue working in her role unless vaccinated.

During the meeting, Customs detailed how it had reached the conclusion that GF’s role required the incumbent to be vaccinated and GF provided feedback. Customs considered that feedback but determined that termination of employment was appropriate.

GF raised a personal grievance and sought reinstatement to her former role.

The Authority considered that from February until the date of dismissal, Customs widely disseminated easily accessible information on vaccination and engaged in correspondence with GF, putting to her its view that the incumbents of her role needed to be vaccinated. The Authority noted that Customs had some limited leeway about the categorisation of its employees as being covered by the Vaccinations Order, but it ‘carried out this categorisation exercise carefully and fortuitously prior to the order being enacted [Customs] had undertaken the necessary work to put in place a structured and logical approach to dealing with employees reluctant to be vaccinated’ (At [108])

The Authority was satisfied that Customs had vigorously pursued alternatives to dismissal. Further, Customs did not materially breach its good faith obligations. The Authority noted that good faith is a mutual obligation and GF had failed to engage with Customs to provide any practical reasons why she had objections to accessing the vaccine. It concluded that GF was not unjustifiably dismissed or disadvantaged.

VMR, KRR, WEN and XDD v Civil Aviation Authority [2021] NZERA 426

VMR, KRR, WEN and XDD were each employed by the Civil Aviation Authority (CAA) as Aviation Security Officers (ASOs) in an airport for a number of years. The applicants were covered by a multi-union collective agreement. From July 2021, the Amended Order potentially extended to the ASO role. Before that date, the applicants had already indicated that they would not be vaccinated.

After the Amended Order came into force, CAA informed the applicants that it considered the order required these employees to be vaccinated to carry out their duties. The applicants all declined vaccination and were dismissed. They claimed that the work they undertook in their ASO roles was not covered by the Amended Order and sought interim reinstatement pending the substantive hearing.

The Authority found that the applicants had established a serious question to be tried in relation to their claims of unjustified dismissal. However, their claim for permanent reinstatement was found to be less strongly arguable than the unjustified dismissal claim.

In addressing the ‘balance of convenience’, the Authority found there was detriment in financial hardship to the applicants if interim reinstatement was not granted. If interim reinstatement was granted the detriment to CAA concerned acting in accordance with the Order, complying with its health and safety obligations and financial effects on payroll. In balancing those matters, the Authority had particular regard to the fact that there were impediments to an order for interim reinstatement to the workplace. It found that the balance of convenience favoured CAA.

In terms of overall justice, the Authority was satisfied that the overall justice in this case required that the interim reinstatement applications be declined.

This case summary was prepared by Peter Kiely ONZM and Layla Darwazeh of Kiely Thompson Caisley.