News Article

latest news in employment law

Sacking of border worker is justified says ERA

Published 20 Sep 2021

The Employment Relations Authority (ERA) has upheld the termination of a NZ Customs worker who refused to take the COVID-19 vaccination.

At the start of this month, the first reported Employment Relations Authority decision of this nature has been published.

The case has been heard at short notice due to its inherent nature and importance in public interest, and the worker unusually granted anonymity in case of public shaming, but nevertheless provides some strong guidance to employers.

The worker had been employed on a fixed term agreement as a Border Protection Office at a marine port.
She personally objected to the COVID-19 vaccination and argued that the location of her employment was a remote port and subsequently low-risk.

NZ Customs Service, knowing the Government's position on "front line" workers COVID-19 vaccinations since late 2020 and the looming Health Order regarding this, moved quickly and openly with staff to share this information and strongly urged their staff to become vaccinated. They further conducted a Health & Safety audit around the issue and the risks involved.

Despite this the worker opted to exercise her right in refusing the jab, maintaining the fact that she cannot be forced and objects to it.

Following further consultation, deciding the role was a "Tier 1" affected role and assessing the options of moving the concerned employee to different roles, of which there weren't any, her employment was terminated the day before the Government's Health Order came into effect.
In comes the Personal Grievance.
Her Advocate initially seeking a hearing from the Employment Court due to the case being of such public interest and unprecedented grounds was quickly thwarted with the Court saying the wider issues are not novel and can be adequately dealt with by the ERA.
The ERA in Christchurch fairly promptly ruled that despite the Health Order, the employer had fully and fairly balanced all the issues in terms of both justification and process in good faith throughout and had acted as a fair and reasonable employer could have done in all the circumstances.

Key point

Lessons from this need to be contextualised with the fact there is a Government Health Order for Tier 1 workers. The termination of workers even via the same process as demonstrated by Customs where no such Health Order is in place is as of yet still untested, and we would suggest a high level of justification would be needed to safely do so.