Employers put on notice: vaccine mandates not a green light for termination

The Employment Court has reinforced the need for employers to follow a robust consultation process when engaging with unvaccinated staff.

Last month, we wrote about the claim brought in the Employment Relations Authority against Auckland International Airport (“AIA”). There, an unvaccinated employee, WXN, claimed he had been unjustifiably disadvantaged by AIA, which had dismissed him in reliance on the government’s Vaccinations Order. The Authority refused to reinstate WXN to his role, but said it was arguable that the dismissal process AIA undertook was defective.

The Employment Court has now considered the case. The Court’s observations should further motivate employers to adopt robust consultation processes regarding unvaccinated employees facing dismissal.

The Court, in considering the process AIA undertook in dismissing WXN, recorded several concerns, including:

• Insufficient analysis of the extent to which WXN’s role involved contact, or potential contact, with airline passengers;
• Failing to consult with other employees about modifying WXN’s role to enable him to continue working and the effect such modification might have on other employees’ work demands;
• Failing to adequately consider medical issues WXN had raised as the basis for refusing to be vaccinated; and
• Failing to engage with a proposal WXN advanced about using his leave entitlements to continue discussions with AIA in lieu of the immediate termination of his employment.

The Employment Court ordered that WXN be reinstated to his employment, albeit on paid and unpaid leave, until the hearing to determine his unjustified disadvantage claim in January 2022. Given the comments the Employment Relations Authority and Employment Court have both now made regarding the process AIA followed in dismissing WXN, it will be interesting to see what the final outcome is in the New Year.

Meanwhile, employers can take a lot from the two decisions already handed down by the Authority and the Court. As we have stressed in previous articles, the fact an employee may be covered by a vaccine mandate is not an automatic green light to dismiss them if they remain unvaccinated. A proper, robust process involving the employee and any representative or support person they may have must be followed.

As the Employment Court has noted, employers must be active and constructive in establishing and maintaining a productive employment relationship. In the context of the COVID-19 vaccination issue, employers should constructively consider and consult on alternatives to dismissal. Interestingly, the Court has suggested there is a particular onus on employers to consider redeployment options where the employee has an objectively justifiable reason not to be vaccinated, such as a medical condition.

The early cases on the ‘no jab, no job’ issue indicate that vaccine mandates will not provide an exception to the typically high standards employers are held to in employee dismissals. Employers who want expert advice on how to navigate these tricky waters and reduce the risk of costly litigation should contact Jaesen, Ruth or Jordan. 

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