No covid jab? No access to employment justice

The Employment Relations Authority (ERA) is not allowing those who are unvaccinated against covid-19 to attend in-person investigation meetings raising concerns about access to justice.

This follows the ERA indefinitely adjourning a case because one of the parties involved is unvaccinated and a remote hearing is not possible.

In an email shared with BusinessDesk, the ERA told case participants there were no exceptions for unvaccinated people to attend proceedings with evidence of a negative test, as allowed in the other courts operated by the Ministry of Justice.

This was because the ERA fell under the Ministry of Business, Innovation and Employment’s (MBIE) risk assessment policy, which required a My Vaccine Pass from everyone attending in-person meetings, the email said.

“I accept that it is not appropriate for the applicant to attend the investigation meeting remotely and this leaves no option but to grant the adjournment requested,” an ERA member said in the email. 

It is understood the applicant's counsel requested the adjournment because they felt there was no other option.

The member also said because of the “fluid nature” of the restrictions a new date could not be set but that may change at any time. 

When approached for comment about whether its rules created a barrier to justice, an MBIE spokesperson directed BusinessDesk to an ERA statement released on Dec 23, 2021.

From Jan 21, 2022, under the red and orange setting “parties, witnesses and representatives must provide their vaccination certificate to attend an in-person investigation meeting,” the statement said.

“If a party, witness or representative cannot provide a vaccination certificate, the authority will consider other ways to give them an opportunity to take part in the investigation. This may include connection by telephone or audio-visual link (including by “Zoom” and “Teams”).

“In some cases, it may be necessary to adjourn the matter until suitable arrangements for attendance in person can be made.”

While it is not clear why the applicant could not participate remotely, a source connected with the case told BusinessDesk it was because the ERA “was not set up for that”.

They also said the ERA refused the applicant’s request to remove the case to the employment court, which has the facilities and processes in place to allow an unvaccinated person to attend a hearing in person.

“Think of the number of people who have lost their jobs because of the mandate,” the source said.

“The employment courts are going to be flooded with these people and if the ERA can’t see any of them because they’re not vaccinated – which is the reason they lost their jobs in the first place – there’s no way for them to have their matters heard.”

“It’s a silly situation to be in.”

The right to access justice

Shelley Eden, director of employment at Gaze Burt, said it could be difficult for the ERA to make assessments of evidence if a witness or applicant appeared at a meeting remotely.

There were also access to justice issues if an applicant wasn’t able to attend their own case because of their vaccination status and it had to be postponed she added.

This would not only put the applicant at a disadvantage but would also hinder employers who are wanting their decisions to be vindicated.

"We need these cases to be determined so they can understand the laws and inform others," she said.

"If those decisions are not being made then that affects everybody, especially employers who are trying to do the right thing and make sense of these laws and get the right outcomes."

Eden said it was concerning that a person might not be able to attend the hearing of their own case even if they presented with a negative test and agreed to comply with all other health and safety obligations such as social distancing and mask-wearing.

“Such a person can go to their doctor and go to the supermarket, and a petrol station, but can’t attend the hearing of their case?

“At the risk of appearing critical, and without having seen MBIE’s health and safety risk assessment, that does not seem reasonable.”

Last year, the ERA heard several cases in which employees challenged their dismissals for being unvaccinated against covid-19.

Eden had previously commented that the vaccine mandates were likely to precipitate even more personal grievance claims and other challenges against employers.