No jab no job?

Monday 13 September, 2021

Since 1 May 2021, the Government has required that certain front-line border workers be vaccinated. Workers who had not been vaccinated within the stipulated timeframe were no longer able to work in front-line positions. This has meant that, if there were no non-front-line positions available for unvaccinated workers to be redeployed into, some employers would be left with little option but to terminate their employment. One such employee unsuccessfully challenged her dismissal in the Employment Relations Authority, which has provided a valuable insight into how the Authority might approach employment vaccination matters in future.

Background

Prior to the Government’s Covid-19 Public Health Vaccination Order 2021 taking effect, Customs had carried out a health and safety risk assessment and identified the applicant’s role as one that required vaccination. Two days before the Health Order took effect, Customs ended the applicant’s employment because she was not vaccinated and did not intend to be vaccinated. Customs considered redeployment but there were no suitable roles available.

The applicant claimed that she had been unjustifiably dismissed, unjustifiably disadvantaged, that Customs had breached its good faith obligations, and that requiring her to be vaccinated was a breach of her right to refuse medical treatment under the New Zealand Bill of Rights Act 1990.

Authority decision

The Authority stated that Customs had acknowledged the applicant’s right not to be vaccinated, but the applicant had refused to engage with Customs on her reasons for refusing vaccination. Customs had provided plenty of evidence why it considered that the applicant’s role posed a health and safety risk if carried out by an unvaccinated person and the consequences if the applicant continued to refuse vaccination. The applicant had had sufficient time to respond to Custom’s decision that vaccination was required.

The Authority found that Customs’ reasons for requiring the applicant’s role to be vaccinated were convincing and Customs had followed a fair process in dismissing the applicant. Customs had actively considered alternatives to dismissal but there were none available. The Authority concluded that Customs had acted in good faith and the dismissal was justified.

How does this affect workers not covered by Health Order?

Although this decision relates to workers covered by a Health Order, it could possibly have wider implications.  The Authority agreed with Customs that the applicant was incorrect to say that her vaccination status did not affect her workplace. This was partly due to the nature of the applicant’s role, but the Authority pointed out that employees have legal obligations toward their co-workers and others present in the workplace under the Health and Safety at Work Act 2015. They must take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons and comply and co-operate with any reasonable policy or procedure of the employing agency.

This will be relevant for employers who consider that the nature of their workplace or of particular roles means that vaccination is reasonably required for health and safety reasons. However, employers who believe that a role requires vaccination should seek legal advice if that role is not covered by a Health Order as this is still very much a developing area of the law.

For any questions relating to this article, please get in touch with one of our experts below.