Wednesday, 27th October, 2021
Does no jab, mean no job? The short answer is ‘yes’ it can, in certain circumstances.
There are effectively two groups to consider: Employees subject to mandatory vaccination orders, and those who aren’t.
In the first group, a failure to be vaccinated could give rise to an employer justifiably terminating an employee’s employment on the basis that certain work must be, by way of Government Order, performed by a vaccinated person.
Take the case of GF v NZ Customs Service.
The employee, GF, was subject to a mandatory vaccination order but did not get vaccinated. After a robust consultation process and risk assessment, GF’s employment was terminated. The Employment Relations Authority concluded, not surprisingly, that in the circumstances, NZ Customs’ decision to terminate GF’s employment was justifiable.
Things become significantly more complicated and murkier with those who aren’t subject to a mandatory vaccination order. With the rise of the Delta variant requiring some employees to be vaccinated, it may be easier to justify than it was before.
Crucially though, a thorough, genuine, and impartial risk assessment must be carried out. WorkSafe New Zealand has updated its guidelines on this, and these will likely evolve as we grapple with what is after all, an unprecedented situation. The guidelines should be the first port-of-call for any business. The focus is on the work to be done and the risk associated with that. All and any views about whether the person ‘should’ in any event be vaccinated are irrelevant.
An employer’s usual ‘process’ obligations remain. Understanding why an employee has not been vaccinated; placing tentative conclusions before the employee; getting the employee’s comments and genuinely considering them; providing all information relevant to the decision the employer is proposing to make – for example providing a copy of the documented risk assessment, is all part of this pivotal process.
As with any action an employer takes, the question will always be: “Were the actions of the employer those that a fair and reasonable employer COULD take in the circumstances?” There is no single blanket rule for all.
In my opinion, if an employer has adhered to the abovementioned requirements and reached a reasonably held conclusion that the relevant work needs to be performed by a vaccinated person, then, dismissal is likely to be justifiable if an employee refuses to do so. In saying this, at the time of writing this article, it would seem that the majority of work can be performed safely by unvaccinated employees.
No definitive case law or guidance on the subject exists yet, but it will no doubt come. In the meantime, employers and advisors are being left in a state of limbo and best guesses can only be made, in what is an unprecedented and rapidly developing situation.
Senior Associate and Employment Law Specialist