Covid-19 vaccinations in the workplace

8 September 2021

The Employment Relations Authority has issued its first determination examining justification for dismissal of an employee who refused to be vaccinated against COVID-19.

The case involved the dismissal of an employee of the Customs Service. The employee in this case performed a front-line role. Customs had determined that employees in such roles must be vaccinated, but the employee did not wish to receive the vaccine.

The Authority held that the employee’s dismissal was justified.

Front-line Customs workers are covered by a Health Order requiring vaccination. However, there are some interesting points likely to have broader application:

  • The Authority noted Customs had undertaken an “impressive review” prior to determining which roles required vaccination. This took into account relevant health and safety legislation and included consultation with employee representatives
  • The employee in this case had not actively engaged in the process. The Authority noted she had managed to “studiously avoid” an individual discussion about her reasons for not being vaccinated. She also accepted under cross-examination that she had not read most of the material about vaccination that had been distributed by Customs. The only explanation the employee put forward was that the New Zealand Bill of Rights Act provides every person has the right to refuse medical treatment. However, Customs had accepted this was a matter of personal choice and indicated it was not forcing employees to be vaccinated.
  • The requirement for vaccination in certain roles did not create a redundancy situation. The Authority noted it was reasonably foreseeable that vaccination would be required in front-line customs roles.
  • Customs had “vigorously” explored alternatives to dismissal. However, the employee was in a temporary role. Due to her geographic location and lack of experience in other specialist roles, redeployment was not practicable. The Authority also noted the employee had not actively engaged on this issue either.

In view of the history of this litigation to date, it seems likely the decision will be challenged in the Employment Court. However, the Authority appears to have properly applied the current applicable law to the circumstances described in the determination. Therefore, it does provide useful guidance as to the approach that should be taken to the issue of requiring vaccination in the workplace.

We recommend that any employer who is considering making vaccinations mandatory for employees performing certain roles puts in place a policy clarifying employees’ rights and responsibilities.

Please contact us if you would like advice as to dealing with these issues in your business.

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