Depts advised to pause dismissal of unvaccinated workers

Government departments and agencies have been advised to “pause” all dismissal cases involving employees refusing to get vaccinated.

The Public Service Commission’s (PSC) guidance follows Justice Francis Cooke’s recent ruling that the covid health orders which mandated vaccinations for police and defence force staff were unlawful.

The PSC said while the judgment only considered the order relevant to the defence and police vaccine mandates, “it provides a good reminder that agencies should continue to review the justifications for workplace vaccination policies and especially before key decisions, in reliance on them, are made”.

The guidance said there are agencies “undertaking processes which may result in the dismissal of non-vaccinated staff as a result of a current vaccine policy".

“Dismissals should only occur after all reasonable alternatives have been exhausted and the rapidly changing nature of the environment will be a relevant consideration as to whether any alternative is reasonable. We, therefore, recommend that dismissal processes are paused whilst agencies review their health and safety risk assessment and vaccination policy.

“Once this review is complete, we recommend agencies revisit their rationale for any proposed dismissals, to confirm that it remains current and justified, taking legal advice where necessary.”

Ministers mull position

Last week, the government decided not to roll over the public health orders which had created the mandates for the police and defence forces.

Covid-19 response minister Chris Hipkins said ministers were still considering the implication of the high court ruling.

“The judgment's quite clear that it's not questioning the role of mandates per se but whether they are required specifically for police and for defence in terms of business continuity purposes,” Hipkins said.

Chris Hipkins: mandates will end "in a timely manner" (Image: Getty)

He added that the government would not make a "knee-jerk response” and would consider what action to change. This could be a legal challenge or a redrafting of the public health order to comply with the law.

Hipkins reiterated that when there is no longer a justification for a vaccination mandate to be in place, “we would look to remove that in a timely manner”.

Health advice confirmed

The PSC said in its guidance that vaccines and other precautions such as physical distancing, face masks, staying home if sick and hand hygiene will provide greater protection against both the spread of the omicron variant and severe illness.

It recommended agencies review their health and safety risk assessment and vaccination policy in light of the confirmed health advice. Such reviews should consider "the consequences of the most credible worst-case scenario" of covid infection in the workplace and community, balanced against measures to control the spread of the virus. 

The PSC noted that while the ruling set aside the Covid-19 Public Health Responses (Specified Work Vaccinations) Order that affected police and defence staff, other mandates remain enforceable.

“Agencies must implement the law, and can rely upon the remaining vaccine orders in their dismissal processes. However, agencies are still advised to exhaust all reasonable alternatives prior to dismissing staff on the basis of a valid vaccine order.”