Whilst the recent High Court decision of Yardley v Minister for Workplace Relations and Safety casts some doubt on an employer’s ability to require certain roles to be performed by vaccinated persons (read our article here), the Employment Relations Authority (Authority) in IOX v QEB [2022] NZERA 77 recently declined to award interim reinstatement for two unvaccinated employees.
In the IOX v QEB decision two employees (IOX and ERZ) were unvaccinated and working in student accommodation associated with a tertiary institution.
Their employer, QEB, carried out a health and safety risk assessment in November 2021 and concluded that all roles at student accommodation should be performed by vaccinated workers from 12 February 2022.
When New Zealand went into the red light setting in January 2022, QEB told all unvaccinated employees that due to the COVID-19 Protection Framework they must remain home, without pay, on the basis that employees would only be able carry out work on a tertiary education premises if they were vaccinated against COVID-19.
IOX and ERZ brought an application for interim reinstatement to full work and pay, or in the alternative to full pay alone, and for an interim injunction to prevent QEB proceeding with any employment process in relation to their unvaccinated status.
On an interim basis (noting the evidence is untested at this stage) the Authority indicated there were likely some procedural flaws in the QEB’s process relating to their consultation on the health and safety risk assessment, including not addressing the employees’ concerns prior to the deadline for vaccination, but declined to award interim reinstatement because:
- IOZ and ERZ’s cases were (on an interim basis) assessed as weak and unlikely to be upheld in the substantive investigation meeting.
- If interim reinstatement was ordered it could have forced QEB to breach the COVID-19 Public Health Response (Vaccinations) Order 2021 (which applied to tertiary institutions and, therefore, could apply to QEB).
- Interim reinstatement could force QEB to breach its health and safety obligations it owed to its other employees, noting that, “requiring them to be vaccinated is, on current Ministry of Health advice, the best way to protect them from contracting COVID-19 at work”.
- All individuals entering the tertiary institution premises had to present vaccine passes, which these employees could not provide. QEB could also breach the Order/ the Red Traffic Light setting rules by allowing these employees on to the premises and, subsequently, damage its relationship with the tertiary institution.
The Authority also declined to halt the process relating to the employees’ unvaccinated status. The Authority relied on several reasons, including that “it was not clear that the underlying premise for it is unjustified and it is not clear that IOX and ERZ will lose their jobs as a result of the process”.
The key points to take away from this determination are:
- Employers should embark on a thorough consultation process with all affected employees on health and safety risk assessments which could mandate vaccination for any role in the organisation. This consultation should involve actively engaging with employee feedback, particularly where employees raise concerns over the basis for mandating vaccinations in the workplace.
- Employers will need strong health and safety reasons to underpin a decision to mandate vaccinations for a certain role. In this case, the employer relied on the most recent Ministry of Health advice to oppose the interim reinstatement claim.
- If an employer thinks that any of its roles are caught by the COVID-19 Public Health Response (Vaccinations) Order 2021 (and there is ambiguity over the Order’s application) the employer should clearly articulate and consult with any affected employees before reaching a firm conclusion on whether any of its roles must, pursuant to the Order, be performed by a vaccinated person.
- Employers must explore all alternatives to dismissal (such as variations in working arrangements, PPE and daily RATS) before turning to dismiss an unvaccinated employee in these circumstances.
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