Employment Relations Authority upholds dismissal of unvaccinated employee

Port NZ

In one of the first decisions relating to the dismissal of an employee refusing vaccination, the Employment Relations Authority (‘the Authority’) released its decision on 1 September 2021 in the case of GF v New Zealand Customs Service [2021] NERA 382.

The Authority found that the employee was not disadvantaged or unjustifiably dismissed in circumstances where the New Zealand Customs Service (“Customs”), the employer, ended the employee’s employment on the grounds that the employee’s role could not be performed safely by an unvaccinated worker. As such, Custom’s dismissal of the employee was upheld.

Significantly, Customs relied on the position that the employee’s role was subject to the COVID-19 Public Health (Vaccination) Order 2021 (‘the Health Order’), meaning that the role could only be performed by a vaccinated person.

In addition, prior to dismissing the employee, Customs had completed a thorough health and safety risk assessment, as well as undergoing a consultation procedure including providing the employee with information, giving her the opportunity to raise any concerns and offer potential solutions, and consideration of redeployment options.

Importantly here, the Authority’s determination is very fact specific, particularly considering the application of the Health Order, with the Authority Member commenting that: “…the overwhelming contextual issue is Customs, as a public agency had a clear responsibility to be guided by government directives to ensure public safety and public confidence in its operations”.

Given the fact specific nature of the decision, employers considering having roles occupied by vaccinated staff only and/or undertaking a risk assessment for that same purpose, should seek legal advice. Employers should also see WorkSafe’s guidance on Health and Safety Assessments for whether a specific role needs to be performed by a vaccinated worker.

For further information or assistance with navigating your employment law needs, please contact our Employment Team.