NZ Customs dismisses unvaccinated employee

The Employment Relations Authority (ERA) has rejected an employee’s claims against the Customs Service for terminating her employment because she was not vaccinated against COVID-19. The employee worked at a port facility, having been appointed to a ‘national role’ in October 2020 designed to assist with temporary additional staffing required to manage the risk of COVID-19 reaching New Zealand through the ports.

Customs begins consultation process

In early 2021, Customs began consulting its employees on vaccination, urging staff to “opt in.” The ERA found that by virtue of her professional background, the employee could have readily absorbed and comprehended the information Customs was regularly providing about vaccination.

Importantly, Customs developed a health and safety risk assessment specific to COVID-19 and the impact of vaccination, which also discussed redeployment where unvaccinated staff could not perform their work safely. The ERA found that the risk assessment was widely promulgated, and subject to input from employees, from the time Customs conducted online information sessions in March 2021.

Employee expresses concern

Later in March 2021, the employee, through a representative, expressed concern about the government’s policy announcement that border workers would need to be vaccinated if they were to remain in front line roles. The ERA questioned the employee’s request that communications be conveyed through her representative: consultation by intermediary, in the circumstances, was impractical. By a general staff email, the employee was invited to discuss whether she could safely continue to do her work if unvaccinated. A more specific letter was later sent to the employee outlining Customs’ concerns about her “unverifiable” vaccination status; this letter established that termination was a possible outcome.

The employee’s representative suggested that Customs was in effect proposing a no-fault restructuring process, comparable to redundancy. The ERA disagreed with the comparison to redundancy, explaining in frank terms that the employee “could have preserved her employment by getting vaccinated”.

Vaccination order comes into force for certain work

The COVID-19 Public Health Response (Vaccinations) Order 2021 came into force at 11.59pm on 30 April 2021, requiring certain work – largely limited to work directly linked to New Zealand’s borders or managed isolation or quarantine facilities – to be performed by vaccinated persons. The parties met on the eve of the Order. Customs indicated that if the employee continued to decline vaccination, it had considered adjusting her duties, but preferred to assist her to access redeployment options with other agencies. With possible application to future decisions, the ERA observed that job-seeking assistance by an employer does not equate to an offer of redeployment.

Customs confirmed the termination of the employee’s employment on 30 April 2021, a decision that the ERA found to meet the test for justification.

ERA finds termination justified

The ERA found that Customs had sufficiently explored the employee’s reasons for declining vaccination; a job made easier given the employee’s bare reliance on the right to refuse medical treatment. Without knowing what specific concerns to address, Customs was not obliged to investigate specific concerns. Instead, Customs provided information on its decision to require the nationwide role to be vaccinated. Customs’ proposal to terminate “based on their own health and safety assessment pertaining to [the employee’s] role” was justifiable. The ERA commented approvingly on the “impressive review” of legislative obligations and consultation given by Customs’ Health and Safety Manager.

It should be noted that parts of the decision are suppressed and the specific details around the employee’s role are unclear. The ERA’s conclusion in this case should not be divorced from the fact that the whole purpose of the role “was border protection with considerably stricter responsibility to adhere to Covid restrictions and personal obligations”: in other words, this decision should not yet be taken as precedent, especially in employment relationships that are not linked to the border and are outside the COVID-19 Public Health Response (Vaccinations) Order 2021.

Moreover, redeployment options were limited given the already temporary nature of the employee’s role. This may not apply to other cases where redeployment may be entirely practical.

However, the ERA did suggest that a practice of persuading employees to access the vaccine “when society is bedeviled by various contentious sources of information on this subject” is to be commended.

Employee needs more than “I don’t want to”

The ERA’s reasoning puts employees on notice that where their employer seeks to consult them as to their vaccination status, and provides evidence of a comprehensive health and safety risk assessment that underpins a vaccination requirement, the employee should be prepared to provide reasons for their decision not to vaccinate, beyond the right to refuse to undergo medical treatment. In the language of the ERA, good faith runs both ways. Raising “practical as opposed to evident philosophical objections” has the benefit of raising the threshold that an employer must reach to justify any decision to require vaccination in the context of an ongoing employment relationship.

If you are an employee concerned about your employer’s stance on COVID-19 vaccinations, or if you are an employer interested in undertaking a health and safety risk assessment to help determine your policy on COVID-19 vaccinations, you should consider seeking legal advice on your rights, responsibilities, and duties under the current legal framework.

If you would like advice on your particular situation, please contact Russell on 03 211 1391