Contributed by: Kylie Dunn, Emma Peterson and Bella Moore
Published on: September 07, 2021
The Employment Relations Authority has issued its first substantive determination in relation to vaccination. The case related to a border worker at New Zealand Customs Service who was in a role covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 (Health Order). The Health Order requires that only vaccinated individuals perform specified work. An individual covered by the Health Order declined to be vaccinated and was subsequently dismissed (following a process). The Employment Relations Authority found that the dismissal was justified. Given that this case relates to a specific health order it will not be directly relevant to most employers but is a helpful insight into how the Authority might look at vaccination matters going forward.
The Health Order required "affected persons" to be vaccinated by midnight 30 April 2021 in order to continue performing specified work. Customs completed a thorough health and safety risk assessment of relevant positions and identified that the border worker's role fell within one of the categories of "affected persons". It determined that the role had to be carried out by a vaccinated person and it had no choice but to end the border worker's employment as they were not vaccinated by the cut-off date. Consideration of redeployment occurred before this decision was made.
The border worker claimed unjustified dismissal, unjustified disadvantaged and that Customs breached good faith obligations. Reinstatement was sought. The border worker put forward various arguments including that section 11 of the New Zealand Bill of Rights Act (the right to refuse to undergo medical treatment) meant she was not required to be vaccinated.
The Employment Relations Authority found that Customs provided ample information to the border worker on the reasons why the role needed to be performed by a vaccinated person and the consequences of the border worker declining to be vaccinated. The border worker was provided with numerous opportunities to identify her concerns about the vaccination process and Customs' health and safety assessment. The Authority also found that Customs appropriately and sufficiently considered alternatives to dismissal.
The Employment Relations Authority held that the dismissal was substantively justified and a fair process had been followed.
While this decision is not directly applicable to employers not covered by the Health Order, the Authority commended Customs for its work in persuading an overwhelming majority of employees to access the vaccine. It also considered an argument that the border worker's stance on vaccination did not impact any other person at the workplace. The Authority did not find that argument persuasive given the obligations a worker has to take reasonable care that acts or omissions do not adversely affect the health and safety of others under the Health and Safety at Work Act 2015. These comments likely indicate the sorts of issues that should be considered regarding vaccination in the workplace.
Please feel free to get in touch with a member of the team to discuss this issue further.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.
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Employment, Health and Safety