NO COVID-19 VACCINE - INTERIM REINSTATEMENT, “YES!” OR “NO!”
Employment law Barrister, Eska Hartdegen, shares an Employment Court case of interest to both employers and employees
Exactly a year ago, we discussed the likely consequences of COVID-19 in the New Zealand employment landscape for employees and the issues and litigation that would arise as a result.
Two Employment Court cases are relevant to take note of. In both cases, the Court was prepared to grant non-publication of the names of the employees. In WXN v Auckland International Airport Limited (AIAL), the Chief Justice granted non-publication amongst other reasons saying: “Non-publication is sought on the basis that the vaccination of workers is a contentious issue in the public domain and there is significant risk of harm in disclosing his name, including in terms of attracting public opprobrium on social media”.
The facts of both cases relate to the employees being dismissed for refusing to be vaccinated against Covid-19. In the more recent case of VMR v Civil Aviation Authority (CAA), the applications for Interim Reinstatement were declined, and in the earlier WXN case the employee was granted Interim Reinstatement.
In VMR the employees were Aviation Security Officers (ASOs). CAA issued an Order that its staff had to be vaccinated. The employees refused to vaccinate and their employment was terminated. They applied for Interim Reinstatement but the Employment Relations Authority declined their application and they challenged the finding in the Court.
The Court held that the language of the Order to vaccinate, was clear. The ASOs argued that they did not have to deal with issues “Airside”, whereas the CAA saw it differently. The Court accepted that some of the ASOs duties fell within the definition of “Airside” and did not consider it was reasonable that the ASOs should not have to fulfil all the duties of their roles, or that in this instance and in all the circumstances, a fair and reasonable employer could be expected to redeploy the respective employees. The Court noted that the applicable Collective Agreement included a right for the employer to dismiss. Also, that the balance of convenience and overall justice were strongly in the favour of the employer, whereas by contrast, the claim for permanent reinstatement of the ASOs was weak.
In WXN where an Order for border workers to be vaccinated had been introduced, WXN a long-standing employee and Senior Mechanical Maintenance Technician of AIAL was informed that he was required to be vaccinated. He lodged an urgent interim reinstatement application in the Court for disadvantage and for dismissal from his employment for failing to be vaccinated by 30 September 2021.
WXN claimed that he was confused about whether he was covered by the requisite Order, as he did not consider he fell into the “affected” group. Also, he was “very anxious about potential health consequences if he were to be vaccinated, having regard to a medical condition he suffers”. WXN said in evidence that: “He feared that use of a vaccine having mRNA properties could cause a flare-up of his condition, potentially affecting his mobility. He said he was terrified by this prospect”.
WXN said further that he was “not seeking reinstatement so that he could return to the workplace, but so that he could remain as an employee on leave and, as he put it, have time to discuss the issues in good faith with AIAL, and/or to preserve the status quo until the Authority could fully investigate his employment relationship problem”. He had sufficient accrued leave to cover a two-month period.
Judge Corkill found that there were inadequacies in the process and that “the steps taken were not those which could be expected of a fair and reasonable employer”. Also, that the good faith obligations required that AIAL “consider a reasonable accommodation in respect of his work duties”.
Reinstatement is the primary remedy in New Zealand for unjustified dismissal. In the circumstances of this particular case, the court held that “overall justice favours WXN, and that interim relief is appropriate”.
The Court decided that WXN should be on paid leave for a period of two months from 30 September 2021, and after that he would be on unpaid leave until the substantive hearing in the Authority was determined.
These two cases illustrate that every case is decided on its own merits and facts.
Employers and employees ae encouraged to seek legal advice about their obligations, rights and entitlements during these uncertain.
The writer is indebted to the NZ Government websites, Judge Holden’s lecture , “Employment Law in the time of COVID-19”, 26 May 2022 and my earlier article “Jab or Job? Employment Court’s Decision on Interim Reinstatement for No Jab” used and quoted from.
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