Covid-19 dominant in employment law work - Capital Letter article




The Covid-19 pandemic continues to dominate work in Wellington-based Ford Sumner Lawyers’ employment law practice, with founding partner Jaesen Sumner expecting this will last well into 2022. 

“It’s certainly all around Covid-19, with workplace vaccination issues and staff choosing not to vaccinate. At the moment we’re looking at health and safety and working through business continuity issues and how our clients can deal with 
these and Omicron,” he says. 

“We thought it was easing off at the end of last year and we’d come back to a different environment, but it’s all picked up again with the recent Red traffic light setting announcement.” 

Sumner says the courts have sent a clear signal that termination of employment for not being vaccinated is possible and justifiable. That is on the basis that the employer has gone through a fair and reasonable consultation process and that the role is one where vaccination is required following a health and safety risk assessment. 

“We’re talking to a lot of clients to ensure they follow a fair process and get that process right. A lot of employers are thinking that because an employee is not vaccinated they can just proceed to termination – that’s not the case.” 

Looking forward 

Sumner anticipates that Covid-19 issues will continue to command a good portion of the Ford Sumner employment team's time over the next six months or so as Omicron dominates. 

“The next wave will be dealing with a lot of sick leave, with businesses struggling because of multiple staff sickness and absence issues. We’re looking at some issues around that – how do businesses minimise this, is the government going to provide more support? 

"We expect these issues will accelerate alongside the government’s advice for longer self-isolation periods for household members in its phase one response to Omicron, as well as the rapidly increasing rates of community transmission." 

He says some businesses are finding reluctance from staff to go into work, but some need their staff in the workplace, creating a tension. “I said I’d like to be a non-Covid-19 employment lawyer this year, but I don’t see it happening.” 

Employment law unfriendly to unvaccinated 

Asked what he sees were the most significant developments in employment law in 2021, Sumner points to the developing legal framework around Covid-19. 

“All the employment issues that arose, with people working from home, the government subsidy payments, dealing with mandates and the vaccination requirements and going through a termination process when people wouldn’t get vaccinated – that’s all certainly new in my lifetime. 

“2021 was really about working with vaccinations. Can you unwind some of the requirements when it comes to the end of the year? The Minister for COVID-19 Response is required to keep all Covid-19 orders under review, so we could see a relaxing of some restrictions if we get to a place where the end of the pandemic is in sight. 

“Certainly at the moment, if you’re not vaccinated, employment law is not very friendly. 

"People say it’s dividing society, but I don’t necessarily think that is the case given the high vaccination rates achieved in New Zealand. Everyone can make their own informed decisions whether to get vaccinated. 

"It is important that where vaccine requirements are being introduced into work environments, they are introduced in a fair and transparent manner, in other words, following good faith consultation. The consequences for non-vaccinated employees can be significant in terms of the loss of employment. We need to recognise that and its impact.”  

Fair Pay agreements coming 

If and when Covid-19 ceases to dominate, Sumner sees the Fair Pay Agreement system becoming an important focus. The government announced its design for the system last May and the Fair Pay Agreements Bill is expected to be introduced early this year. 

“A lot of industries are saying that a fair pay agreement is certainly not fair, so I think there will be some robust interactions when it is brought in. There will be some interesting developments,” he says. 

He’s also interested in the private member’s Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill which was introduced by Labour MP Deborah Russell in October. This would extend the time available to raise a personal grievance that involves allegations of sexual harassment from 90 days to 12 months. 

The changing economic situation and its impact on businesses may also have a big impact on Ford Sumner’s work in 2022.
“Inflation and interest rates going up might have some real impacts in terms of businesses not being able to afford to continue or to carry the same number of employees. Redundancy could become another big issue for 2022,” Sumner says. 

“We did expect a wave of redundancies, restructuring and the like during the initial Covid-19 outbreak. We saw a few, but nowhere near as many as we thought. 

"I think that was because of the wage subsidy and other government initiatives at the time, but I don’t believe the government can continue to provide that level of support given the current state of the books. We’re in a position where there could be a lot more pressure on business with restructurings and redundancies in 2022, so watch this space. It’s interesting times.” 




Originally published by the Capital Letter | Geoff Adlam