A body of useful legal precedent is emerging from the controversial covid-19 vaccine mandates, although key questions remain unanswered as companies and workers are reminded of the need to maintain good faith in their employment relationships.
How far employers must explore “all other reasonable alternatives” to dismissing unvaccinated employees and the extent to which tikanga forms part of Aotearoa New Zealand’s employment law, are outstanding concerns.
However, lawyers and employers and employees may soon get answers on the tikanga issue. The Employment Court is yet to hand down its decision in an appeal against an Employment Relations Authority (ERA) determination on whether employers are justified in dismissing their employees for refusing to be vaccinated against covid-19.
GF v New Zealand Customs Service arose in response to the government’s now-revoked Public Health Response (Vaccinations) Order 2021 as the plaintiff was a public sector employee. GF lost in the ERA, which found Customs’ actions were justified as it followed due process. GF appealed, arguing among other things that Customs failed to act in line with its own whanonga pono, or values, and with other tikanga principles relevant to their employment relationship.
“It is common ground that this aspect of the claim raises relatively novel and developing issues within the employment law context,” said Employment Court Chief Judge Christina Inglis, who drew the proceedings to the attention of a handful of potentially interested parties, including Te Hunga Rōia Māori o Aotearoa.
The Māori Law Society applied for, and was granted, intervener status. Neither the plaintiff, whose name remains suppressed, nor NZCS opposed the intervention. The substantive hearing of the appeal concluded at the end of January. Until judgment is issued, the wider, practical implications of GF’s tikanga question remain unclear, says Auckland University law lecturer Simon Schofield.
Another lingering question for Schofield, a member of the ADLS Employment Law Committee, is the extent to which employers must explore all other reasonable alternatives to dismissing unvaccinated employees, under clause 3(4) of Schedule 3A to the Employment Relations Act 2000.
“Indeed, the boundaries of the requirement…are proving increasingly difficult to pin down,” he says.
Clause 3(4) of Schedule 3A, which deals with provisions relating to covid-19 vaccinations, states an employer must ensure all other reasonable alternatives, which wouldn’t lead to termination of an employee’s employment agreement, have been exhausted.
What those alternatives look like could include employees taking annual holiday and unpaid leave or working from home, as in the Hoyle v HealthcareNZ case. But Schofield says there is scope for the courts to accept other options, including redeployment, retraining, early retirement, job sharing, secondments and even re-employment. “Blinkered employers who dismissed unvaccinated employees with imprudence and impatience are now suffering the financial consequences of their actions.”
Several key themes have emerged from vaccine mandate cases where employees have succeeded in proving their dismissal was unjustified. Good faith is explicitly legislated for in the Employment Relations Act: s 4 requires parties to an employment relationship deal with each other in good faith and they must not mislead or deceive.
In Hoyle v HealthcareNZ, decided last month, the plaintiff didn’t share the full extent of her medical reasons for refusing to be vaccinated. ERA member David Beck found her conduct contributed to the circumstances leading to her eventual dismissal and undercut her “reciprocal duty to act in good faith”.
Conversely, Healthcare NZ breached its good faith obligations in failing to explore the possibility of taking up Hoyle’s offer of working from home. While Hoyle, working in a community outreach role, accepted it was desirable to have face-to-face contact with adults seeking mental health assistance, “an adaption to her working approach could have been accommodated, at least on a temporary basis and regularly reviewed”, Beck said. The failure was just one of several the authority member identified as not justifying the dismissal.
Parties to an employment relationship are also on notice about the consequences of a lack of diplomacy. In Laursen v Coldrite Refrigeration & Air Conditioning, also decided in February, the applicant said the company’s managing director had told him he had been “brainwashed and read too much bullshit on the internet”, at a meeting that authority member Michael Loftus described as having “degenerated into a standoff”.
Following the “fractious” meeting, the applicant sent a text that claimed the managing director had spread lies about him. The managing director argued the text made him conclude there was no option but to abandon the discussion about potential redundancy and dismiss. He then sent an “injudicious” email to the plaintiff, which Loftus compared more to a disciplinary infraction than confirmation of a possible redundancy. “A disciplinary infraction would again require a discussion prior to the decision to dismiss, yet there is no suggestion these concerns were raised let alone discussed,” Loftus said. Laursen ultimately succeeded in his personal grievance.
Schofield says an argument also exists that Schedule 3A isn’t flexible enough as it could have given unvaccinated employees the option of taking a period of protected unpaid pandemic leave.
“In New Zealand, there is discrete employment protection from dismissal for those taking parental leave and voluntary service or training in the armed forces,” he says. “A variation on that theme is that such unvaccinated employees who were dismissed could have had the right to elect to be re-employed at a later time if that was practicable and reasonable for the employer,” he says.
With the removal of government vaccination mandates, many such employees were indeed reinstated. But such options should be more explicit in the legislation as accrued benefits may have been lost. ■