Posted on: Sep 16, 2021

A recent decision of the Employment Relations Authority (the Authority) made by Member Beck sitting in Christchurch, has attracted a significant amount of attention. The decision is GF v New Zealand Customs Service, 2021 NZERA 382.  Put shortly, the Authority decided that Customs could dismiss the employee (GF) because the employee declined to get vaccinated for Covid-19.  

My view is that the decision does not open any floodgates and is not considered an authority for a general proposition that Employers may dismiss workers who refuse to be vaccinated.  

The factual matrix of the case suggests that it has been decided on the particular facts that applied to the Employer on the one hand, and the Employee on the other. 

The Employer, New Zealand Customs Service, is of course a Government agency engaged particularly in protecting New Zealand’s borders and dealing with international transit across those borders, both in maritime and aviation applications. Customs has a large number of its staff very much at the coalface of resisting further incursions by the COVID-19 virus. Customs is also an entity that is proscribed in some, or all, of its activities by relevant Government health orders pertaining to the COVID-19 virus.  

The Employee in the Authority’s decision was appointed to their role in 2020, specifically to help Customs confront the onslaught of COVID-19.  The employee was adjudged by the Authority to be intelligent and able and could not therefore be held to have misunderstood the extensive communications from Customs in respect to the implications of being a front-of-house person in an organisation like Customs during a pandemic.

The Authority decided that Customs had thoroughly consulted on its obligation to meet Government requirements both in terms of the relevant health orders and in terms of informal announcements made by the Ministers of the Crown, including the Prime Minister, which initiated changes to those health orders, or signalled those changes.

As I have already noted, the Authority was satisfied that the affected  employee understood the importance of the various communications from Customs. The Authority was also satisfied that the role performed by the employee was a front of house role and that as a consequence, a fair and reasonable employer could have reached a decision to dismiss an employee who declined vaccination given the organisation’s inability to find an alternative role for that person.

So this was a decision clearly made, having regard to the particular factual matrix that applied.  As I already noted, the nature of the employer made it particularly attuned to the requirements of the Government by virtue of its position within the state sector. 

 Its border control obligations meant that it was particularly affected by the relevant health orders and by decisions notified or foreshadowed by Ministers, and, notwithstanding the employee’s decision not to become vaccinated, the Authority was satisfied that the employee knew, or ought to have known, the potential risks of that stance. 

 A particular aspect of that equation was the Authority’s conviction that the employee did herself no favours by refusing to engage with her employer about her reasons for refusing the vaccine.  

So what are the legal rules around employers seeking to promote or mandate vaccination amongst its staff?  The first port of call has to be the relevant provisions of the Bill of Rights Act 1990, which as is widely known, has provisions in it relating to the right to refuse medical treatment (which must include vaccination). Similarly, there is a right in the Act for a person not to be subjected to “medical or scientific experimentation”. And more generally, there is a right in the statute to freedom of expression and the right to impart information and have opinions on any matter.  

What is particularly important to remember in respect of the Bill of Rights Act, is that its provisions apply only to public sector activities.  Section 3 makes clear that the statute applies only to acts done by the Government of New Zealand through its three branches of legislation, executive and judiciary, or to any person pursuing any public function, power or duty pursuant to law.  

That limitation applying only to public sector bodies and actions does not prevent the Bill of Rights Act from being persuasive in judicial reasoning but it is equally clear that the provisions in the Bill of Rights Act cannot be relied upon by persons working in a private sector organisation and seeking to resist an employer’s decision to promote vaccination amongst its staff. 

Next we should remember the provisions of the Health and Safety at Work Act 2015, which relevantly provides, between sections 58 and 60, an informal code for the introduction of a new Health and Safety Policy. For present purposes, the introduction by an employer of a policy to promote vaccination would be such a Health and Safety Policy.  For example, the relevant provisions make clear that when an Employer is making decisions about ways to eliminate or minimise risks in a workplace, there must be a process of engagement with workers affected by the decision before any hard and fast decisions are made.  

It follows from the foregoing that if an Employer wishes to promote vaccinations amongst its staff, and is not within the category of businesses or entities that are covered by any of the Government Health Orders which require vaccination, it is possible for such a private sector business to develop a pro-vaccination policy, but only after a period of thorough and detailed consultation with the affected staff so that it can be truly said that the policy that is finally enunciated is a joint enterprise of the Employer and the affected staff. 

Even in those circumstances, it is still going to be an open question as to whether an Employer would be able to successfully defend a decision to dismiss an existing staff member for a refusal to be vaccinated, even where there had been a process of full consultation of the sort just described.

There are, however, two glosses to this proposition.  The first is that the position may be different in respect to new staff.  To put that point another way, it may be available to an employer, who has a comprehensive Health and Safety Policy that has been developed after extensive consultation with existing staff, to decline to offer employment to persons who indicate that they are not yet vaccinated because the employer may be able to say that a term of the Offer of Employment is that the incoming worker be vaccinated already and is able to prove that.  

There are still possible arguments against such a situation; the first being that it may be available to an Employee or potential Employee who has been denied employment, exclusively because of their failure to be vaccinated, to argue that refusal to hire them is unlawful discrimination either in terms of the Employment Relations Act 2000, or  in terms of the Human Rights Act.  Whether such a claim would be successful or not may depend on whether the failure to be vaccinated was the only ground on which the Employer relied upon not to appoint a particular person and if the employer were able to point to other deficits in the potential employee’s qualifications or experience. 

The second qualification to the broad rule that I referred to above is that where there are particular circumstances in the workplace which seem to encourage vaccination, albeit that vaccination is not legally mandated, it may be more difficult for an Employee to resist the requirement to be vaccinated where public policy considerations tend to militate in favour of vaccination.  

For example, a learning institution, a hospital or care facility, or any facility that engages with potentially vulnerable individuals may well be able to defend the requirement for existing staff to be vaccinated, provided there had been a proper process of consultation in the development of the policy. 

A recent decision of the Fair Work Commission in Australia (Australia’s equivalent to our Employment Relations Authority) demonstrates this point very well.  In Barber v Goodstart Early Learning, the Fair Work Commission found that Goodstart had a statutory duty to ensure, as far as was reasonably practicable, the health and safety of its employees and that Ms Barber, one of their staff members, had employee responsibilities in that same regard. Because this workplace involved the care of children, there were additional obligations on the Employer. The Commission decided vaccination was seen as a superior control measure for the prevention of disease within a childcare environment and so it was available to Goodstart to mandate vaccination.  The underpinning of that ability to mandate vaccination was Goodstart having worked through a thorough consultation process with staff and affected unions.  The irony around this decision is that it did not relate to vaccination for COVID-19, but simply vaccination against influenza. 

While decisions of the Fair Work Commission are of only persuasive authority in New Zealand, it is suggested that a similar result would apply in New Zealand if a factual situation similar to Goodstart came before our Employment Relations Authority.

If, as an Employer, you are contemplating moving towards a situation of mandating vaccination for COVID, there is, as this article suggests, an area where the law is yet to be settled and accordingly you should take our advice before you proceed further down the track. 

 

James Crichton, Barrister 



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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.