Employment Relations Act 2000, ss 103A and 174E and sch 3 – vaccine mandate – covid-19 – fair and reasonable employer – breach of good faith – discrimination – reinstatement of employment
Sue Thoms v Royal New Zealand Foundation of the Blind Incorporated Trading as Blind Low Vision  NZERA 254.
Sue Thoms was employed as a primary service provider (PSP) for Blind Low Vision New Zealand (BLVNZ), a registered charity governed by the Royal New Zealand Foundation of the Blind. BLVNZ supports people who are blind, deafblind, or have low vision.
Thoms herself is legally blind. When she needed to work, Thoms required a support person who drove for her and helped with administrative tasks. She had been employed by BVLNZ for 32 years, working a 30-hour week from Monday to Thursday. Due to her impairment, she carried out most of her work remotely but visited clients when required.
On 2 February 2022, Thoms was dismissed for failing to comply with BLVNZ’s covid-19 vaccination policy as she refused to be vaccinated.
Thoms argued her dismissal was unjustified because BLVNZ failed to fairly consider alternatives to dismissal. She sought reinstatement, compensation, lost wages and penalties.
BLVNZ argued it went through a fair consultation process with Thoms about its vaccination policy and engaged with her about the consequences of her noncompliance, including by considering alternatives to dismissal.
After vaccine mandates came into force in April 2021, Thoms wrote to BLVNZ about her position: she was not double-vaccinated and she was not intending to get vaccinated. Instead, she proposed options that would allow her to continue in her role if she were to remain unvaccinated.
Thoms’ position on vaccination was based on her underlying medical condition. After discussions with her GP, she was reluctant to have the vaccine. But she advised BLVNZ that she was willing to have a different vaccine when it became available in New Zealand and provided a letter of exemption.
Both parties initially proceeded on the basis that Thoms was required to be vaccinated under BLVNZ’s policy if she was to provide in-person services to clients.
Thoms proposed to carry out her role remotely and noted her primary place of work had been her home office for the past 10 years as her role involved both telephone and in-person engagement with clients.
After a series of meetings in-person and via AVL, BLVNZ advised Thoms it did not consider redeployment or varying her role were viable alternatives in the circumstances. Subsequently, her employment was terminated.
Applicable principles: Whether Thoms was unjustifiably disadvantaged when she was dismissed – whether she was discriminated against by way of disability, health or vaccination status – available remedies – whether BLVNZ acted as a fair and reasonable employer.
The Employment Relations Authority (ERA) said there must have been alternative options available to Thoms, which would have allowed her to continue working, because she was already carrying out her role in an adapted way due to her sight loss.
It was clear Thoms already did most of her work remotely before the vaccine mandate was introduced. Furthermore, BLVNZ did not provide any information to her demonstrating it had considered her alternative proposal. For BLVNZ to have acted in good faith, it would have needed to give information relevant to the continuation of Thoms’ employment.
The ERA said her proposal represented an alternative way of working. Moreover, given Thoms’ medical conditions, the authority found BLVNZ did not properly explore the medical exemption process. The employer had to exhaust all other reasonable alternatives before terminating employment when the employee’s vaccination status formed the basis of the dismissal.
The ERA found Thoms had made out her claim for a personal grievance. Her dismissal was unjustified.
- Thoms is to be reinstated to the payroll immediately and within 42 days of the determination to be reinstated to her former position or into a position that is advantageous to her;
- BLVNZ to pay lost remuneration for three months following the date of her dismissal, including contributions to KiwiSaver and payment of holiday pay; and
- BLVNZ to compensate for humiliation, loss of dignity and injury to feelings of $25,000.
Note: BLVNZ is no longer appealing the decision. A settlement has been reached in mediation.
Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee.