On 1 September 2021, GF v New Zealand Customs Service – the first decision addressing a situation where an employee was terminated due to not being vaccinated – was issued.
The result – the employee was not unjustifiably dismissed or disadvantaged by New Zealand Customs Service (the employer) after being terminated for not being vaccinated.
Does this mean employers can dismiss unvaccinated workers?
No, this decision does not mean all employers will be entitled to take this stance. But it does provide some useful insights into how an employer might respond to this situation. There are specific circumstances in this case that need to be taken into consideration being:
- New Zealand Customs Service considered the employee was an ‘affected person’ under the COVID-19 Public Health Response (Vaccinations) Order 2021 and accordingly they could not continue working in their role unless vaccinated;
- The employer had undergone a health and safety analysis based on Ministry of Health advice which concluded vaccination was a ‘reasonably practical step’ and the assessment had been extensively consulted on;
- Although asked by Customs, GF did not provide any reasons behind not wishing to get vaccinated, other than relying on her rights under the Bill of Right Act 1990 with her representative claiming individual reasoning and circumstances for refusing the COVID-19 vaccination was not relevant;
- Based on the information in the decision it appears Customs provided considerable information about the vaccine and the reasons for requiring it; and
- Based on geographical location it appears there were limited or no options for redeployment within Customs but there was an offer of approaching other agencies to identify ongoing job opportunities.
We look at the decision in more detail below.
- GF was in a border protection officer role working at a maritime port facility
- Her role was to assist with temporary additional staffing required to manage and reduce the risk of COVID-19 entering New Zealand
- Customs workers were considered a priority to be offered a Covid- 19 vaccination
- Customs circulated information to staff of vaccinations and a manager visited workplaces detailing the expectation that all frontline border workers access the vaccine
- There was follow up information provided including Ministry of Health information on the vaccine with an indication that vaccination would not be compulsory
- There were options to ask questions or raise issues
- Further information was provided regarding the impact of GF being an ‘affected person’
- There was a meeting where the employee’s individual feedback was sought and Customs further explained their reasoning for their position
- Options for redeployment were discussed
Customs actions were what a fair and reasonable employer could do in all the circumstances. The Authority considered that Customs being a Government department with ample access to legal advice needed to be held to a high standard and went on to determine that:
- though it was not a conventional disciplinary or performance dismissal, Customs undertook a ‘sufficient investigation’ specifically around why GF declined to be vaccinated whilst acknowledging GF’s right to refuse the vaccine;
- issues of concern were properly identified before the decision to dismiss was made;
- GF was provided a reasonable opportunity to respond to Customs’ concerns;
- Customs genuinely considered any explanation provided by GF before deciding to dismiss, noting that GF was given the opportunity to access the vaccination and Customs offered to rescind the decision to dismiss;
- Customs had a clear responsibility to be guided by government directives and that Customs undertook the categorisation of workers as affected persons under the vaccination order carefully; and
- Customs considered alternatives to dismissal.
The Authority found that Customs, other than being slow to respond to correspondence, did not breach their obligations of good faith. One point reinforced by the Authority is that good faith ‘runs both ways’. This is often a point forgotten. Based on the mutual obligation of good faith, it would have been prudent for GF to provide reasons for her objection to being vaccinated.
We understand that this matter is likely to be challenged in the Employment Court. So, like all things COVID-19 related when it comes to employment law we are once again saying… watch this space.