10.09.2021

Employment Relations Authority Finds Dismissal of Unvaccinated Border Worker to be Justified

On 1 September 2021, The Employment Relations Authority (Authority) determined in GF v New Zealand Customs Service [2021] NZERA 382, that the New Zealand Customs Service (Customs) was justified in its decision to dismiss a border worker (GF) who refused to receive the COVID-19 vaccination.

Facts:

In October 2020, GF was employed as a Border Protection officer to assist with the COVID-19 response at a maritime port facility. The role was initially envisioned to be temporary and end in December 2021.

During GF’s employment, Customs on several occasions shared vaccination information with employees and expressed a desire that all employees be vaccinated, although never made it compulsory to do so.   Most workers took up the opportunity to be vaccinated. 

Increased pressure from the Government prompted Customs to contact GF and other unvaccinated workers directly in order to provide information and support to assist in their decision to be vaccinated.  By this point (early March 2021) Customs was explaining to its workers that health and safety risk assessments made it likely that unvaccinated workers would possibly be removed from front line duties and possibly redeployed.  It had carried out what it described as a comprehensive health and safety assessment.

On 8 April  2021, the Prime Minister announced that front line border workers must be vaccinated or start being moved into “low risk” roles by Monday 12 April 2021 if they chose not to get vaccinated.

In response to this message, Customs invited GF to a meeting.  In the letter it explained that the work must be performed by a vaccinated worker, and that if GF did not want to be vaccinated, that Customs would need to consider  other work options.  The letter indicated termination was a possible outcome. 

An exchange of correspondence ensued, including criticism of the health and safety assessment by GF’s representative.  Part of this criticism was an argument that GF’s work involved minimal risk, and the risk assessment needed to be revised to take into account GF’s “unique individual circumstances”.  The latter appeared to be that GF did not want to get vaccinated.  The representative insisted that GF’s “individual reasoning for refusing the COVID-19 vaccination will not be discussed…”.  Eventually, a meeting took place on 29 April.  By that time, the Public Health Response (Vaccinations) Order 2021 had been issued on 28 April and was to come into force at the end of 30 April.  It became mandatory that all “affected persons” needed to be vaccinated otherwise they could not continue to work in their positions. Customs considered GF to be in an affected role covered by the mandate.

At the meeting there was discussion around the Government’s requirements, the employer’s assessment of GF’s role being covered by the mandate, and the possible outcomes for GF’s employment including redeployment or termination. GF and her representative provided feedback, and the meeting adjourned.  Following consideration of what had been discussed with GF, Customs made the decision to terminate GF’s employment.  GF decided to accept payment in lieu of notice, rather than being on garden leave while other options (including GF getting vaccinated, or being redeployed to another role) were explored.

GF then raised a personal grievance for both unjustified dismissal and unjustified disadvantage.

The Legal Arguments: 

GF’s grievances were that:

  • GF’s role did not fall into the affected persons category covered by the mandate;
  • There was insufficient communication from Customs regarding its risk assessment of the role;
  • The Bill of Rights Act 1990 states that everyone has the right to refuse medical treatment. Accordingly, Customs cannot force employees to be vaccinated;
  • It seemed a decision had already been made about her employment prior to consultation; and
  • Custom’s decision to terminate GF’s employment amounted to a redundancy as it involved the restructuring of GF’s role to be undertaken by someone who is vaccinated. Therefore, redundancy compensation was payable.

As GF had refused to discuss her individual views with Customs her case was left relying on the Bill of Rights and GF’s belief that the role did not pose a health and safety risk sufficient to require GF to be vaccinated.

GF’s representative also argued that GF not being vaccinated did not impact on any other person in the workplace.

Custom’s position was as follows:

  • Careful consideration was given to adjustments in GF’s role so that her vaccination stance could be accommodated. However, this was not possible given the core nature of the work and the broader environment;
  • Customs’ risk assessment was consistent with the Government’s mandate;
  • Customs acknowledged and agreed that it could not force anybody to be vaccinated and confirmed it was not trying to do this.

Decision:

The issue before the Authority was whether the dismissal and the actions of Customs were justified in all the circumstances.  Applying the test of justification under s 103A of the Employment Relations Act 2000 (i.e. whether a fair and reasonable employer could, in all the circumstances at the time, have reached this decision), the Authority arrived at the conclusion that GF was not unjustifiably dismissed or disadvantaged.

The Authority found Customs carefully sought to explore the reasons for GF’s refusal to be vaccinated and that GF was given numerous opportunities to respond.  Conversely, GF had refused to engage in the discussion and had made attempts to “studiously avoid” efforts by Customs to contact her for consultation.

The Authority had no difficulty with Custom’s risk assessment and the lengths that it went to discuss and even review that assessment with GF and other employees.  It soundly rejected the claim that GF’s individual stance on vaccination would not impact any other employee, and pointed out that every worker has a duty to take “’reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons’” and to comply and co-operate with any reasonable policy or procedure of the employing agency”.

In addition, the Authority commented that Customs is a public agency and had a responsibility to be guided by government directives.  The role categorisation exercise was carried out by Customs in a structured, logical way.  Ultimately, Customs had “every right to do [what it did] in law and in the prevailing circumstances”.

We also note that while the redundancy claim was dropped, the Authority nevertheless made comment that it was unconvinced this situation could be a redundancy, as a redundancy is a “no fault” situation, yet, GF could have preserved their employment by being vaccinated.

Our Comment:

The result of this case is somewhat unsurprising; a government agency is unlikely to be unjustified in following a government mandate, particularly when it has made every effort to accommodate affected employees.  While the substantive justification was supported by the Public Health Order, the process is equally important and an employer must make sure that the procedural requirements in s103A are met.  In this case, Customs was found to have followed a fair and reasonable process.  

Nevertheless, the decision is of narrow application as it only applies to positions where vaccinations have been made compulsory by way of a government order, which at present is limited to MIQ and border workers.

The real dilemma comes when an employee that does not occupy a position covered by a government mandate is dismissed for refusing or failing to be vaccinated.  This situation will inevitably arise, as increasingly employers must juggle the individual rights of the employee against its own obligations to ensure a healthy and safe work environment.  We expect to see cases of this nature appear before the Authority / Employment Court as vaccinations become increasingly accessible.

This decision does inform how the Authority may approach circumstances that fall outside of the government orders.  A great deal of the decision referred to Customs’ risk assessment as it relied on “its own health and safety risk assessment and a government legislative order”.  That risk assessment was challenged by GF.  In other cases, where there is no relevant government order, a comprehensive risk assessment, how an employer goes about that risk assessment including involving its workers as required by the Health and Safety at Work Act 2015, and its process, are likely to be key to justifying any vaccination requirement for any position.

In the meantime, this decision is certainly instructive for those in positions affected by the mandate.  

We also understand that GF has also applied for a judicial review of the Public Health Response (Vaccinations) Order 2021, challenging the requirement that persons carrying out specified work need to be vaccinated. This is set down to be heard by the High Court on 20 & 21 September 2021.

If you have any questions about mandatory Covid-19 vaccinations, or employment issues generally, please get in touch with our Employment Team or your usual contact at Hesketh Henry.

 

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

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Contact the expert team at Hesketh Henry.
Kerry
Media contact - Kerry Browne
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