Posted on: Feb 08, 2022
Last month, a case came out of the Employment Court denying interim reinstatement for unvaccinated workers at Christchurch Airport.
Four Aviation Security Officers (ASOs) at Christchurch Airport (CA) had their employment terminated in September 2021 because they had chosen not to get vaccinated.
Receiving the COVID-19 vaccination was a mandatory requirement for this particular class of workers involved. The employer stated it was not possible to modify job descriptions to avoid the legal requirement or to redeploy them. The plaintiffs sought interim reinstatement as a remedy for unjustified dismissal.
In their decision, the Court considered the role and its duties. In this consideration, there was a dispute between the parties as to where they are required to undertake duties – that is, public area or security-enhanced area (no accessible to general public). The plaintiffs were convinced that they did not need to come into contact with the public and therefore, were not covered by the Order. On 12 July 2021, an amendment to the Order was made extending the vaccination requirement to a wider group of employees – mandating airside and landslide workers.
The Court decided that based on the evaluation of the balance of convenience factors, the Court was not persuaded that the interests of justice required interim orders of reinstatement. In short, even if the plaintiffs could establish that they do not fall under the amended Order, reinstatement would have to be considered against the fact that mandatory vaccinations would be required by a relevant health and safety policy.
It is also noted that CA were about to consult with employees on a formal health and safety policy as to vaccinations in light of the risk assessment which had been undertaken.
Part of the argument here is that a fair procedure was carried out and the employer acted in a fair and reasonable way. However, the Judge stated that even if there were procedural flaws with regard to consultation and reasonable alternatives, it is not likely they would be permanently reinstated.
It was argued that reinstatement of the plaintiffs to their ASO roles would place both them and CA in breach of the amended Order, thus giving rise to the prospect of penalties. This statement was accepted and the challenge for interim reinstatement was declined.
It is important to note that the difficulties which have arisen here are not due to any fault on the plaintiff’s behalf. They were well regarded by their employer. They made a choice about vaccination as they were entitled to do so.
Interestingly, this decision is contrary to another case seen last year from Auckland Airport where interim reinstatement was granted to a worker who claimed a disadvantage grievance and unjustified dismissal. The worker was ordered to be reinstated to their former position but remain on paid leave for a period of 2 months and unpaid leave thereafter, until further order of ERA. The question to whether this grievance was justified was whether they were covered by the Order and whether the process was fair and reasonable.
At the time the worker said he was confused by the Order and whether it applied to him.
He claimed he had a medical condition and was terrified about the potential health consequences of the vaccine.
It was found that there was an arguable case in relation to a disadvantage grievance, but not on whether he would be permanently reinstated (which was considered a weak argument). He challenged the initial decline for reinstatement – not so he could return to the workplace, but so he could remain as an employee on leave and have time to discuss the issues with his employer.
The plaintiffs’ appeal mainly focused on whether the employer acted fair and reasonable – the Judge found they did not. This was based on the fact that there was no evidence the employer worked through the modified proposal put forward by the employee, and that the employee found the discussion of the meetings overwhelming and emotional. He was told he would be suspended if not vaccinated, leaving him feeling like he was being bullied into vaccination. There was also no discussion about ongoing options.
The Court agreed that this behaviour was not fair and reasonable and interim reinstatement was awarded, as opposed to permanent due to the application of the Order being weakly arguable.
What we can learn from these two cases is that reinstatement decisions can come down to procedural fairness and how the employer had acted in the process.
Particularly here we can see that Auckland Airport failed act fair and reasonably throughout the process – that being throughout the process and in considering the employees feelings and feedback. In this case, a fair and reasonable process would have included:
- Thorough analysis of feedback and/or alternatives
- Introduction of policy and risk assessment
- Reasonable consultation
As stated by Judge Corkill in the Auckland Airport case:
“Good faith is a developing concept. Its scope is informed by particular circumstances. The Act focuses on maintaining and preserving employment relationships, rather than terminating them. It is arguable that in circumstances such as the COVID-19 context, where a “no jab, no job” outcome is under consideration, there is an active obligation on the employer to constructively consider and consult on alternatives where there is an objectively justifiable reason not to be vaccinated.”
As with all judicial decisions, these two cases highlight that the legal test of whether an employer has acted in a fair and reasonable manner is dependent on the facts and merits of each individual case. However there is still the overarching expectation that Employers are meeting employment law obligations to engage with employees in good faith, be responsive and communicative, and not mislead or deceive.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.