Most people were pleased that the government removed the remaining covid-19 public health requirements last Tuesday.
This removed the requirement for seven days’ mandatory isolation if you test positive for covid and the wearing of facemasks for visitors to healthcare facilities.
While the covid-19 restrictions have gone, covid-related employment matters continue to be a headache for any employer who dismissed an employee for a failure to be vaccinated.
A number of those cases are still working their way through the Employment Relations Authority, and two recent cases demonstrate the hard road for employers to show that dismissals for a failure to be vaccinated are justified.
While both cases had their genesis with the introduction of mandatory vaccination, at the end of the day, the issues were in relation to the process that each employer undertook before terminating employment. These cases further remind employers that process remains key and missed steps are at an employer’s peril and cost.
Baillie v vice chancellor of the University of Otago
The university employed Louisa Baillie as an anatomical model fabricator. The university introduced a requirement for mandatory vaccinations for staff from Jan 10, 2022. Baillie was vaccine-hesitant and was not vaccinated. Ultimately, the university dismissed Baillie for her failure to be vaccinated, and Baillie then raised a claim with the authority claiming the university’s decision was unjustified.
The authority analysed in-depth the process that led to the university’s decision to dismiss Baillie and found there were significant process issues but did not take issue with the decision to implement the mandate itself.
The university went wrong concerning a statutory provision that was added to the Employment Relations Act 2000 on Nov 16, 2021, which expressly related to termination of employment due to not being vaccinated.
Before giving notice of termination to an unvaccinated employee, the employer had to “ensure that all other reasonable alternatives that would not lead to termination of the employee’s employment agreement have been exhausted”.
The authority held that this had not occurred. In particular, Baillie had proposed that she could carry out some work from home (as she had done when the whole country was in lockdown), which the university did not fully and properly explore.
There was also confusion between those that Baillie reported to and the human resources department regarding how much work she could do from home, and no one properly considered her proposal.
It was also accepted that the university did not consider Baillie’s personal circumstances, which included her caring for an elderly father, any leave options, or the fact that Baillie had seven weeks' annual leave at the time of her employment ending.
This only emerged during the investigation meeting and appeared to have been overlooked by all parties and would have been a reasonable alternative to dismissal.
The authority found that the university’s dismissal process could be best described “as muddled with too many parties involved at various times and poor communication evidence”.
The authority ultimately held that the university had failed to properly engage and discharge its statutory duty to ensure all reasonable alternatives to the termination of Baillie’s employment had been exhausted. Baillie was awarded $20,000 hurt and humiliation compensation and six months’ lost earnings of $33,023.50.
Collier v Damar Industries Limited
Collier was ultimately dismissed for breaches of a code of conduct and failure to follow lawful and reasonable instructions.
This was off the back of Damar’s decision to implement a mandatory vaccine requirement.
Collier did not want to be vaccinated, and his employment ended at that point. However, while he was on his notice period, having looked for new employment and not found it, he changed his mind about being vaccinated.
On Jan 11, 2022, he advised Damar that he had received the first dose of the vaccine.
Damar allowed Collier to come back to work under various conditions, including a requirement to receive a second vaccination, to wear a mask, one-metre social distancing was required and, importantly, “separate lunch breaks and segregation for other staff members during breaks”.
On two occasions, Collier was observed sitting closely with colleagues during the lunch breaks.
Damar commenced a disciplinary process in relation to each of these incidents as it was considered he had failed to comply with the conditions of return.
A very short disciplinary process followed. Concerning the allegation of sitting with people at a second lunchtime, Collier was only given three hours' notice of the need to attend a disciplinary meeting, and he was ultimately dismissed.
Collier raised an unjustified disadvantage grievance in relation to the introduction of the vaccine mandate and a personal grievance for unjustified dismissal.
Interestingly, the authority found that Collier was unjustifiably disadvantaged through imposing an unjustified covid vaccination policy.
This followed expert evidence that significant deficiencies in the risk assessment led to the vaccination mandate being introduced, which was accepted by the authority.
The authority found Collier was disadvantaged, and he was awarded $3,000 as hurt and humiliation compensation.
The authority also found that Collier was unjustifiably dismissed. The authority had significant concerns about the process that Damar undertook.
This included a failure to clearly state that Collier was being required to attend a disciplinary meeting, a failure to set out what form the disciplinary action might take, and the authority was very critical of Damar only providing three hours’ notice of the disciplinary meeting in relation to the second lunchtime issue. The authority found that no good reason was shown about why the disciplinary meeting could not have been deferred even by just a few days, with consideration given to suspending Collier until it occurred. This deprived him of getting representation and properly considering the allegation.
There was a further deficiency in the process in relation to an email sent by one of Collier’s colleagues complaining about his conduct.
This was relied on by Damar but not provided to Collier. The authority held it was a primary piece of information from an eyewitness and should have been provided.
Collier was awarded $29,000 hurt and humiliation compensation and lost wages of $11,400.
Interestingly, the authority considered Collier contributed to the situation he found himself in and reduced the $29,000 award by 35% to $18,850.
This was because Collier’s explanation for sitting with his colleagues at lunch was that he had assumed that bubbles were in operation as they had been earlier, but he had not clarified this with anyone.
