Non Vaccinated Employee Justifiably Dismissed – Dukesons Business Law - Employment Lawyer – Business Lawyer

September 2021

This Blog isn't legal advice – if you need legal advice on any employment law issue, please contact me. I'm business lawyer (commercial lawyer) in Auckland who provides advice on a wide range of business law including employment law issues.

In GF v NZ Customs Service, Customs was held to have justifiably dismissed an employee who was required, by legislative order, to be vaccinated and who refused to be vaccinated.

Where the case is relevant to businesses generally is that Customs had separately undertaken a risk assessment in relation to the employee’s role and had determined that only vaccinated workers should perform that role because of the possible risk of their catching Covid 19 and because of likelihood of transmission by them to others if they are infected. In conjunction with carrying out the risk assessment, Customs passed on to employees detailed information about Covid and vaccines and encouraged them to get vaccinated.

It was held that the risk assessment was appropriate and that it had been carried out in a fair and reasonable manner, as had the dismissal. In that regard, the actions that Customs undertook point towards what would be expected of any employer who determines that the role to be performed by an existing or a prospective employee should be performed by a vaccinated worker. In this case, there was no alternative way of performing the role and there were no opportunities for re-deployment within Customs (Customs was willing to assist the employee to try to find work elsewhere) .

To require that a role be performed only by vaccinated employees, an employer would first need to carry out a health risk assessment, which would require consultation with employees who might be affected by the assessment. If the law requires that an employee who performs a certain role be vaccinated or if the employer has fairly and reasonably determined that this is required, the question then becomes what to do if the employee refuses to be vaccinated. The employer has to consult with the employee as to what possible options there may be e.g. re-deployment, working from home, etc. If there are no reasonable options, then the employer may ultimately need to dismiss the employee. (Any dismissal could only be carried out once a fair and reasonable process has been carried out. That process may be part of the consultation process where consideration is given as to what options, other than dismissal, there may be.)

The Customs case demonstrates that it would be prudent for an employer to pass on to employees detailed information about Covid and vaccines and encourage them to get vaccinated. This not only makes common sense in any circumstances but would also form part of a consultation process in carrying out a health risk assessment, particularly if the assessment points to a requirement for any employees to be vaccinated.

None of this allows an employer to require an employee to be vaccinated – that would contravene the Bill of Rights. Nor, in most cases, can an employer require an employee to disclose whether they are vaccinated. But if, due to law or to an appropriate health risk assessment, a role should only be performed by vaccinated employees, an employee who refuses to be vaccinated could find that they lose their job. Similarly, if an employee in such circumstances refuses to disclose whether they are vaccinated. Note that in those circumstances, there is no redundancy – the role is required.

In terms of requiring new employees to be vaccinated, the views of lawyers seem to range from an absolute acceptance of this right to a right that depends on their being good health and safety reasons for such a requirement and/or the extent to which an employer can seek personal information under the Privacy Act e.g. about a worker’s vaccination status. The latter view is predicated not just on the provisions of the PrivacY Act but also on the basis that an employer must act in good faith, so that any requirement for a new employee to be vaccinated must be justified. Cautious employers will adopt this view, which means that they would need to have carried out an appropriate health risk assessment as to whether new employees performing certain roles can only work safely if vaccinated, or whether other health and safety measures could work equally well (assuming them to be practical).

Where it's legitimate for an employer to require a new employee to be vaccinated if they wish to be employed, the employer would be entitled under the Privacy Act to ask if the employee is vaccinated (and to provide proof) because the collection of that personal information would be for a lawful purpose connected with a function or activity of the employer, and that collection is necessary for that purpose. While the employee can’t be compelled to disclose that information, it would need to be made clear to them that if they don’t, the employer will have no option other than to assume that the employee isn’t vaccinated.

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