Unjustified dismissal – vaccine mandate – Employment Relations Act 2000 – personal grievance – test for justification – compensation for hurt and humiliation – lost wages

Baillie v The Vice Chancellor Of The University Of Otago [2023] NZERA 438.

Louisa Baillie worked at Otago University as an anatomical model fabricator from 2017 until her employment ended in March 2022. During the first covid-19 lockdown, Baillie worked from home, doing both practical and research work. During the second lockdown, she engaged in research due to the inability to organise practical work. Baillie’s work was highly regarded, and she received an “outstanding” assessment in a 2021 performance review.

In December 2021, the vice chancellor announced the enforcement of a vaccine mandate for all staff, students, contractors and visitors from January 2022.

Baillie informed the university about her vaccine hesitancy and engaged in discussions with the heads of department and human resources. She requested to work from home, explaining her previous success with her home workshop set-up.

Her request moved back and forth, and no significant concerns were raised about her ability to work from home. She was assured several times she could expect further discussion after the December break before a decision was made.

HR head Kevin Seales, who had not yet engaged with the matter, was put in charge after the break. The head of department had also changed and the ERA said there was a “significant problem” in how Seales was briefed.

There was miscommunication and confusion about the type and amount of work available for Baillie outside the office and very little discussion on other work-from-home options.

Seales confirmed Ballie’s employment would be terminated unless she became vaccinated. He explained it was impractical for her to work from home and there was no suitable alternative position due to the mandate.

Legal reasoning

Baillie claimed she was unjustifiably dismissed and sought compensation and lost wages under s123(1)(c)(i) and (ii) of the Employment Relations Act 2000.

Baillie claimed she was dismissed too hastily, without sufficient regard to her personal circumstances and without exhausting reasonable alternatives such as working from home and, as later emerged in evidence, paid and unpaid leave options.

The ERA acknowledged the university’s actions were conducted in good faith but found a hasty termination was unnecessary, given the absence of pressure to replace her or fill the role temporarily.

It found Baillie’s home set-up could have enabled her to complete her assigned tasks as initially agreed upon. The university failed to sufficiently explore this option, nor did it adequately consider leave alternatives, which might have extended her employment until the end of May 2022.

The ERA recognised the university’s challenges due to the pandemic and related constraints. Nevertheless, the university’s decision-making and dismissal process was flawed and was described as “muddled, with too many parties involved at various times and poor communication”.

The ERA stressed the necessity of considering practical and pragmatic alternative solutions before opting for termination.

Applicable principles: unjustified dismissal – statutory interpretation – alternatives to dismissal – factors of contribution – consideration of personal circumstances.

Held: Baillie’s dismissal was unjustified, warranting compensation of $20,000 and $33,000 in lost wages.

Vivian Mitchell is an LLB/BA graduate.

Baillie v The Vice Chancellor Of The University Of Otago [2023] NZERA 438.