So, we now have a limited decision on no jab no job. It’s limited due to a number of reasons. This is a case between GF v New Zealand Customs (Customs), GF was employed by Customs as a Border Protection Officer at a maritime port facility.
GF had objections to obtaining the vaccine (reasons unknown) and refused to do so. The Government issued the COVID-19 Public Health Vaccination Order 2021 (Vaccination Order) which required “front line” border workers to be vaccinated against COVID-19.
Customs believed GF’s role fell under the Vaccination Order. Their health and safety assessment had also concluded that vaccinations were required, given the risk of exposure to the virus. Customs decided that the GF’s role (amongst others) could only be undertaken by vaccinated individuals. Following lengthy consultation, Customs had determined that GF was unwilling to be vaccinated. It explored changing work arrangements to mitigate exposure risk and redeployment into a different role. Customs was unable to identify other available roles or reach an agreement with GF. GF was accordingly dismissed from her role on the day that the Vaccination Order came into effect.
In the Employment Relations Authority, GF challenged both this decision and the process used to reach its decision to dismiss. GF claimed that there were no health and safety reasons that could justify requiring the role to be vaccinated. Customs, in turn, argued GF’s employment was justifiably ended once the Vaccination Order came into effect, and that prior to the Vaccination Order, they had conducted a thorough health and safety risk assessment and determined on legitimate and reasonable grounds that GF’s role required her to be vaccinated.
The Authority agreed with Customs, ruling that its actions ultimately met the standard of a fair and reasonable employer. GF, therefore, lost her case.
This case serves as a clear assertion of the standards that employers will likely need to go through to require COVID-19 vaccines. But remember this employee was subjected to an Act of parliament that required certain employees to be vaccinated.
Further, the Vaccination Order provided ample justification in this case, the Authority Member made it clear that the courts will not unduly ‘step into the employer’s shoes’ in determining whether changes to a role (like requiring vaccination) are justifiably required. The Authority simply must be satisfied that the decision made was reasonable. In practice, this will mean a thorough and genuine health and safety risk assessment being carried out in consultation with the employee. WorkSafe guidance recommends that employers take into account two factors when conducting a risk assessment:
- The likelihood of a worker being exposed to COVID-19 while performing the role; and
- The potential consequences of that exposure on others (for example, community spread).
The requirements of the process which employers must follow:
- Sufficient investigation: The employer should explore the reasons that the employee is declining to become vaccinated, while acknowledging their right to refuse under the NZ Bill of Rights Act.
- In this case GF refused to engage with Customs on this matter and put Customs in the position that it could not take her views into account. Unfortunately, GF’s representative apparently did little to facilitate good faith obligations owed by both parties.
- Consultation: The employer should provide all the information it can which is relevant to the decision to make vaccination mandatory for the particular roles. Customs’ comprehensive health and safety risk assessment was carried out with close regard to these legislative obligations. The employee must be given a reasonable opportunity to provide responses to the concerns or proposals, and the employer must carefully consider any responses given.
- The employer should consider all alternatives before making a decision to dismiss. Options like changing work arrangements or redeployment to lessen health and safety risks need to be fully explored with the employee.
Requiring employees already employed to become vaccinated is a complicated issue. There is interaction between contractual and statutory obligations, from health and safety considerations to employees’ rights under the NZ Bill of Rights Act and the Human Rights Act.
An employer’s actions will be considered in light of the circumstances at the time, the obligations of consultation, communication and good faith remain a major consideration.
GF’s role involved border control, and because the Vaccination Order made vaccinations in those roles mandatory so that helped to justify the decision to dismiss her. GF’s and her representative’s decision to run this case in my view lacked proper reflection of the changes to Border control, Customs had strong justification to dismiss, other employers will not have this luxury.
For more information or specialist advice we can provide you with help drafting the correct consultation documents and assist with the process. Therefore you should contact IR Thompson Associates Ltd on 03 383 9988 or firstname.lastname@example.org