2 August 2021
The Employment Relations Authority has refused to remove a COVID-19 matter to the Employment Court, finding no important matters of law or public interest.
The Applicant, a border worker at a port, refused to be vaccinated against COVID-19. This was despite the Government’s Public Health Response Order requiring such ‘front-line’ workers to not work unless vaccinated and requiring their employers to not allow them to work unless vaccinated. As the Applicant refused the vaccination, her employer brought her employment to an end on notice. The Applicant sought to remove her application for interim reinstatement to the Employment Court. The Authority may order removal if it considers important questions of law may arise, removal is in the public’s interest, or if in all the circumstances it considers the Employment Court should determine the matter.
The ‘important questions of law’ submitted by the Applicant presupposed the employer had directed or required the Applicant to be vaccinated, and this constituted a change to her terms and conditions of employment. However, the Authority determined it was not apparent she had been so directed/required by the employer. The vaccination was never mandatory, and her terms and conditions were not changed. Other ‘important questions of law’ seemed to challenge the Public Health Response Order itself, which the Authority noted it, and the Employment Court, have no jurisdiction in respect of. The Authority also considered the public interest had been overstated as the matter involved a narrow contextual setting.
The Authority noted that the Applicant was prevented from continuing employment by an external, statutorily imposed requirement. The Authority considered the matter was analogous to an unlicensed employee not being able to continue employment in a role involving driving which required a license.
Although this determination did not make any substantive findings as to whether the employer had acted ‘fairly and reasonably’, it does not bode well for the Applicant in our opinion. If the Authority considers a statutory vaccine requirement is on par with a statutory drivers license requirement, then an outcome that the employer was found to have acted fairly and reasonably seems likely.
This matter can quickly be distinguished from circumstances where an employer dismisses an unvaccinated employee where no statutory requirement to be vaccinated applied. In those circumstances, the employer would have to meet a considerably higher bar to show it acted ‘fairly and reasonably’. We note an Australian case later in this newsletter dealing with these circumstances. Cases of this nature in New Zealand are inevitable, and will require significantly more of employers seeking to justify a requirement to be vaccinated.