Employment Relations Authority Decision – Dismissal for Refusing Vaccine - Justified

Employment Relations Authority Decision – Dismissal for Refusing Vaccine - Justified

The Employment Relations Authority ("Authority") have issued the first decision in relation to an employee being dismissed for refusing to be vaccinated against Covid-19 (GF v New Zealand Customs Service [2021] NZERA 382).

The Authority found that the dismissal of an employee who worked for New Zealand Customs Service ("Customs") in a border 'officer role' at a maritime port facility was justified. The employee raised a claim of unjustified disadvantage and unjustified dismissal. Customs conducted a thorough health and safety assessment and was of the view that the employee came within the scope of the Covid-19 Public Health Response (Vaccinations) Order 2021 that mandated 'affected persons' could not continue to work in their roles unless vaccinated.

On coming to its decision, the Authority noted a number of points that will have a broader application and may be relevant to many employers when implementing vaccination policies in the workplace:

• Customs sought to engage with the employee and understand why she did not wish to be vaccinated.

• The employee did not engage in the process, and she gave no reasons as to why she did not want to be vaccinated.

• Customs provided information on the reasons why the incumbent in the officer role needed to be vaccinated and the consequences of declining vaccination.

• Customs provided ample opportunity to the employee to respond.

• Customs sufficiently investigated the employee's reason for declining a vaccination.

• Customs undertook an "impressive" review and consultation before coming to the view that vaccination was a requirement for the role.

• Alternatives to dismissal were "vigorously" considered by Customs.

• After discussing its position with the employee, Customs gave the employee a further opportunity to access the vaccination and offered to retract the decision to dismiss.

It is clear that the good faith obligation on both parties is key when dealing with employees and the requirement to receive the Covid-19 vaccination.

Take home points

Employers need to consider the risks associated with the workplace and whether vaccination is required. A thorough health and safety assessment needs to be carried out, and consultation with the employees. The Authority suggested that encouraging employees to access the vaccine was commendable. We recommend all employers have a vaccination policy setting out the stance of the employer and expectations for employees.

We can assist with issues such as the above, and provide a vaccination policy.

Please direct any enquiries to:

Melissa Johnston (Partner) on (09) 306 6729 (mjohnston@mcveaghfleming.co.nz)

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Written by Melissa Johnston and Olivia Faulds

© McVeagh Fleming 2021

This article is published for general information purposes only.  Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice.  If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.