In GF v New Zealand Customs Service, GF's employment was terminated after Customs, taking into account its own health and safety risk assessment and a government compulsory vaccination order, determined that the border protection role undertaken by GF required her to be vaccinated against covid-19 and she refused to be vaccinated.

The Authority considered fair and reasonable the consultation procedure prior to dismissal, with which the employer assessed the possible alternatives to dismissal and stated that GF's dismissal was justified on the basis that the role undertaken by GF required her to be vaccinated in accordance with the compulsory vaccination order.

The Employment Relations Authority (ERA) has issued a further determination in relation to the covid-19 Public Health Response (Vaccinations) Order 2021, further highlighting the role of the government’s vaccine mandate in the context of frontline employment.

On this occasion (case VMR, KRR, WEN and XDD v Civil Aviation Authority) four long-serving Aviation Security Officers have been dismissed (effective 27 September 2021) for failing to be vaccinated under the Vaccinations Order, which covers certain roles at affected airports, including “airside workers.” The employees raised problems with their dismissals and asked to be reinstated to their terminated employment while the ERA fully considered the substantive issues.

The Authority balanced the respective hardships that each party would suffer if reinstatement on an interim basis was granted or not. There was detriment to the applicants of financial hardship if interim reinstatement was not granted, while the detriment to CAA concerned whether it was acting in accordance with the Order, complying with its health and safety obligations and to financial aspects if interim reinstatement was ordered to the payroll.

In balancing those matters, the Authority considered there were impediments to an order for interim reinstatement to the workplace and declined to grant interim reinstatement on 1 October 2021.

At this regard, it is also important to mention the High Court’s decision in GF v Minister of covid-19 Response [2021] NZHC 252, that on 24 September 2021 confirmed the legality of the Vaccinations Order.

Business New Zealand considers this decision a good one, insofar as it provided certainty for employers of workers required by Public Health Orders to vaccinate. However, the decision raises some important questions.

According to the Business New Zealand, in the absence of a thorough assessment of the risk to workers and evidence of the presence of a risk commensurate with compelling workers to be vaccinated, employers should be particularly cautious. Should compulsion be considered necessary in future, the ability to mandate it currently is limited to either what is prescribed by Public Health Order (safe) or designating work as high risk under the Health and Safety at Work Act).

This, highlights Business New Zealand, puts employers in a hard position: allowing workers to work in situations that create exposure may breach employers’ obligations as a Person Conducting a Business or Undertaking (PCBU) to keep workers from risk of harm; on the other hand, mandating vaccination may breach rights-based obligations. There is no simple answer.

Given the importance of the topic, WorkSafe has released guidance to assist employers in completing a risk assessment to determine what work could require an employee to be vaccinated if that work is not covered under the covid-19 Public Health Response (Vaccinations) Order 2021. 

WorkSafe advises that employers should complete the risk assessment in consultation with employees and their representatives and must focus on the role, rather than the individual performing the role. 
The guidance directs that the assessment should be specific to the circumstances, based on the day-to-day tasks and work carried out.

It provides a list of questions to help employers determine whether the nature of work itself raises increased risk of infection or transmission of the virus, which includes:

-           How many people the employee carrying out the work comes into contact with?

• How close in proximity the employee carrying out the work is to other people and how long that is required for?
• Whether the work involves regular interaction with people vulnerable to Covid-19?
• Comparing the risk of infection and transmission of Covid-19 in the work environment to the risk outside of work.