Personal grievance – unjustified dismissal – Employment Relations Act 2000, ss 4, 4A, 103A, 123, 124, 128, 189, and sch 3, cl 12 – employer obligations – employee obligations – fair and reasonable employer – good faith – non-publication orders – Public Service Act 2020, ss 3, 12, 14, 73, 73(b) and (d), 75 and 188A – good employer obligations – State Sector Act 1988, s 56 – Health Practitioners Competence Assurance Act 2003, sch 1, cls 5 and 6 – Evidence Act 2006 – employee hearsay evidence – Covid-19 Public Health Response (Maritime Border) Order 2020 – Covid-19 Public Health Response (Required Testing) Amendment Order (No 2) 2020 – Covid-19 Public Health Response (Required Testing) Amendment Order (No3) 2020 – Covid-19 Public Health Response (Vaccinations) Order 2021, cls 7, 8 and 11 – Insolvency Act 2006, s 101 – predetermination

GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101.

As part of the government’s “stamp out” approach to covid-19, GF was employed by Customs as an assistant customs officer maritime border at a South Island port on a short-term agreement.

Customs’ operations meant it had to comply with the covid-19 vaccination order requiring all frontline staff to be vaccinated.

Customs’ communications to staff focused on “vaccination-hesitant” staff. GF was not in this category; GF did not want to be vaccinated and did not consider the job needed to be done by a vaccinated worker.

GF argued Customs did not keep them adequately informed about vaccine mandate obligations. In fact, GF was alerted to potential employment issues by the media, not Customs. In March 2021, GF instructed an employment advocate whom Customs also failed to adequately engage with in not replying to queries and sending generic letters that did not address GF’s concerns.

GF and four other unvaccinated Customs officers from the same port were called to a meeting on 29 April 2021. At that meeting, GF received a notice of termination of employment, effective from 30 April 2021. GF, who had been adjudicated bankrupt in February 2019, pursued a personal grievance in the Employment Relations Authority under the Employment Relations Act 2000 (ERA).

Along with not keeping staff adequately informed, GF argued Customs also failed to complete a health and safety assessment of GF’s role to determine whether it was vaccine-mandated. Customs did not hold the promised private conversation with GF or give them an opportunity to submit feedback on proposals or decisions affecting their employment.

GF acknowledged Customs was in a novel situation but claimed it did not act as a fair and reasonable employer, predetermined outcomes, breached its obligations of good faith, failed to comply with tikanga/tikanga values, and failed to meet heightened obligations under the Public Service Act 2020 (PSA).

Customs strongly opposed GF’s claim. It argued the circumstances entitled it to take a cautious approach to health and safety; it provided GF with adequate opportunity to engage; GF refused to participate; the PSA did not impose heightened obligations; tikanga/tikanga values applied only to Māori staff; and procedural flaws were minor.

Applicable principles: employment obligations are evolving – legislation, common law, parties’ agreement all inform obligations – tikanga/tikanga values not precluded by statute – employment law is relationship-centric – s 73 of the PSA imposes heightened obligations – PSA relevant to good faith – employer must understand and apply its policies – inclusion of tikanga/tikanga values creates obligation – s 73(d) of the PSA wider application than individual staff – tikanga /tikanga values applied to all employees – distinguished FGH v RST – s 73 of the PSA deliberate – employer incorporated values relevant to assessments under ss 4 and 103A of ERA – EC not bound by strict evidence rules – evidence admissibility still limited despite Employment Court discretion – distinguished PCC – equity and good conscience applies to evidence admissibility – opposing party must have opportunity to respond – natural justice not a hard limit for Employment Court – Evidence Act rules of assistance – resources of parties relevant to evidence admissibility – employer-created obligations must be fulfilled – employer obligations not negated by employee actions – employee failures affect damages calculation – employee must meet obligations – obligations exist independent of other party – link between grievance and loss required – band 2 $12,000-$50,000 applies – GF claim hybrid for Official Assignee purposes –wages are property claim – Robinson approach followed – Official Assignee determine share of GF wages award – suppression subject to open justice principle.

Held: GF was unjustifiably dismissed by Customs and was granted a permanent non-publication order and damages. Employment Court Chief Judge Christina Inglis said Customs did not act as a fair and reasonable employer and failed to follow a fair and reasonable process. The decision to terminate GF’s employment was “predetermined” and “fatally flawed”.

Specifically, Customs failed to meet the s 103A standard, tikanga/tikanga values and s 73 of the PSA. Customs failed to meet obligation in s 4 of the ERA by failing to communicate effectively. Customs failed to actively engage and apply the tikanga/tikanga values it incorporated.

Andrea Hilton is a sole practitioner specialising in local government work. She has 14 years’ experience as a general counsel in local government.

GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101