Legal Updates

Dismissal for failing to vaccinate against Covid-19 - Employment Relations Authority has first word


On 1 September 2021 the Employment Relations Authority (“Authority”) issued a decision in GF v New Zealand Customs Service [2021] NZERA 382 where it grappled with the vexed issue of an employee (“GF”) being dismissed from their employment for failing to vaccinate against Covid-19.

The Facts in Brief

GF was employed by New Zealand Customs Service (“Customs”) on 15 October 2020 in a border protection “officer” role.  The role was 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”.

Towards the end of 2020, the government determined that border and managed isolation workers, including those employed by Customs, be considered a priority to be offered a Covid-19 vaccination.

On Thursday 8 April 2021, the New Zealand Prime Minister, after an unvaccinated quarantine facility security guard contracted COVID-19, announced that “front line border workers” including those working at ports must be vaccinated or start being moved into “low risk” roles by Monday 12 April if they refused to get vaccinated.

While this announcement was not foreshadowed to Customs, it nevertheless moved quickly to commence consultation and have conversations with its affected Tier 1 border workers who remained unvaccinated, including GF.  Importantly, this consultation process also involved a health and safety risk assessment for the specific work undertaken by their employees to determine whether their employees could safely continue to do their work unvaccinated.

This process continued throughout April 2021 culminating in the decision that, due to the promulgation of the Covid-19 Public Health Response (Vaccinations) Order 2021 that was set to come into effect at 11:59 pm, 30 April 2021, Tier 1 workers could not continue working in their roles unless vaccinated.

Notwithstanding protestations in reliance on section 11 of the Bill of Rights Act 1990 that provides everyone the right to refuse medical treatment, GF’s employment was terminated by letter of 30 April 2021 citing the government order that had come into force at midnight of that day, the results of the health and safety assessment and Customs practical inability to adapt the role to suit GF’s desire not to be vaccinated.

The Legal Bits

Section 103A of the Employment Relations Act (“the Act”) requires the Authority to assess on an objective basis, whether an employer’s actions were what a fair and reasonable employer could have done in all circumstances at the time the dismissal or other actions occurred. A dismissal must be effected in a procedurally fair manner with good faith obligations applying as set out in s 4 of the Act.

These factors often cited under s 103A assessments are:

  • Whether given the resources available to the employer, did they sufficiently Investigate the allegations made against the employee?

  • Did the employer raise the issues of concern with the employee prior to deciding to dismiss?

  • Was the employee afforded a reasonable opportunity to respond to identified concerns?

  • Did the employer genuinely consider any explanation provided by the employee before deciding to dismiss? and

  • Any other factor the Authority regards appropriate.

After considering the above factors and evidence, the Authority concluded that GF’s termination was justified in that Customs actions were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or other actions, holding:

  • What Customs had done and had every right to do in law and the prevailing circumstances, was determine the position GF occupied could only be safely undertaken by a vaccinated worker;

  • Customs as a public agency had a clear responsibility to be guided by government directives to ensure public safety and public confidence in its operations;

  • While Customs had some limited leeway to categorise its employees as being covered by the vaccination requirement, Customs carried out this categorisation exercise carefully and fortuitously prior to the order being enacted they had undertaken the necessary work to put in place a structured and logical approach to dealing with employees reluctant to be vaccinate;

  • Alternatives to dismissal were vigorously pursued by Customs but GF was employed in a position that was already temporary in a geographical area of few opportunities and by definition in an ‘above establishment’ role;

  • GF’s lack of experience in other specialist roles Customs require worked against easy redeployment and GF did not constructively engage with Customs when it was becoming obvious that GF’s stance on being vaccinated would restrict employment prospects;

  • Good faith ‘runs both ways’ as a mutual obligation and GF failed to engage with her employer to properly apprise them of any practical as opposed to evident philosophical objections to accessing the vaccine.

The Takeaways

There are a number of takeaways from this decision.

  1. Where a Public Health Response Order is in place requiring vaccination of employees who perform certain roles, a failure to vaccinate will, in all likelihood, result in termination of employment unless there are viable and safe redeployment options available for the unvaccinated employee.  If there is a redeployment option available for the affected employee that should be explored.

  2. Reliance on section 11 of the Bill of Rights and the right to refuse medical treatment is enshrined in law.  This right cannot be infringed by your employer but a decision to decline medical treatment (i.e. the vaccine where a Public Health Response Order or a health and safety risk assessment requires it) may have downstream consequences such as termination of employment.

  3. Health and Safety assessments are an important tool in any decision regarding roles that are deemed necessary to be carried out by vaccinated workers.

  4. Regardless of the above, consultation remains a “must” and must be carried out in good faith.

  5. Each matter that arises will need to be assessed on its own specific facts.

The above is a short synopsis of the Authority decision, which will no doubt be the first of many on this topic.  While this case was decided against the backdrop of a Public Health Response Order it is of useful guidance on matters that need to be considered and processes that should be followed where a health and safety risk assessment points to a role needing to be  performed by a vaccinated worker to ensure greater public safety.

It is also worth testing the decision.  What would the finding have been if GF had said, ‘I can’t have any vaccination as our family is deathly scared of them since my uncle died from a reaction to a flu vaccination 20 years ago' or if GF was advised on medical grounds not to take the vaccine? Would a different more accommodating approach from GF actually have changed the outcome?

Our view is that there are likely many more cases involving perceived high risk workplaces which fall outside the mandated “vaccinated’ employment groups under Public Health Response Orders. We think careful and considered advice is required wherever these issues arise.

If you have questions or matters you would like to discuss with us regarding this issue, please contact Jaesen Sumner.