By: Anthony Drake, Rosie Judd
The Employment Relations Authority has released its first substantive determination dealing with an employer’s right to dismiss an employee who refuses to be vaccinated against COVID-19.

In the case of GF v New Zealand Customs Service [2021] NZERA 382, the Authority found that Customs was justified in dismissing GF, a border protection officer working at a maritime port facility, who refused to be vaccinated against COVID-19.

In the Authority’s determination, there was a close examination of Customs’ justification to require that GF’s role needed the occupant to be vaccinated on health and safety grounds, including the risk assessment undertaken, and the process followed by Customs in consulting with GF on this requirement prior to coming to a decision to dismiss her from her employment.

Customs’ health and safety risk assessment focused on understanding what work was at risk of spreading COVID-19 and how adding vaccination to the suite of controls available impacted upon the likelihood and consequences of transmitting the virus from the border into New Zealand.  The factors which Customs considered in deeming work to be at risk of exposure to the virus, included where work:
  • Exposed staff to bodily fluids or surfaces where the virus may reside
  • Brought staff into contact with international passengers or crew
  • Exposed staff to close contacts of infected persons

Having undertaken that risk assessment, Customs formed the view that it could not adjust the work, thereby removing the need for vaccination, because of the core nature of the role.

Customs also provided an extensive amount of information to its employees on the benefits of vaccination to persuade its employees to be vaccinated.  Extensive consultation with employees was key.

The problem for GF was a refusal to engage with Customs and articulate why they did not want to get vaccinated in order to preserve ongoing employment.  GF did not provide any individual reasoning for refusing the vaccine and instead relied solely on the right to refuse medical treatment under the New Zealand Bill of Rights Act 1990, in addition to her view (which Customs disagreed with) that her job role did not pose a health and safety risk sufficient to require her to be vaccinated.
 
No one disputes GF’s right to refuse medical treatment but that is not the issue.  The right to refuse medical treatment is not unlimited.  Also, a decision to exercise a right does not make a person immune from the consequences of that decision.  In this case, the consequence of GF’s decision was that she was dismissed from her role.  The issue was whether Customs was justified in deciding that the role which GF performed for Customs needed the employee to be vaccinated and therefore whether Customs acted fairly and reasonably when deciding to dismiss her when she had not been vaccinated.

GF suggested that her stance on vaccination did not impact any other person at the workplace.  The Authority found that stance to be unsustainable due to the nature of the role and legislative obligations a worker shares with co-workers under the Health and Safety at Work Act 2015.  The Authority observed that a worker has a duty to take “reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons” and to comply and co-operate with any reasonable policy or procedure of the employing agency.

Only time will tell whether this decision has a wider and more general application for other employees and employers, but there is certainly some useful guidance for employers who are considering requiring vaccination for some or all their workers.  It will also be interesting to see if this decision is appealed.
 
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