Can an employer dismiss an employee who refuses to be vaccinated?
A recent decision by the Employment Relations Authority determined that a temporary border protection worker who failed to be vaccinated against Covid-19 by the time a Government Order came into effect was able to be dismissed.
So, the answer to that general question is yes, but it comes with some very specific qualifications. This particular worker worked for the New Zealand Customs Service at a port facility, and they were on a fixed term employment contract.
Border workers were amongst those who were prioritised for vaccination. Customs encouraged all staff to get vaccinated and in fact advised staff that it was their expectation all front line workers would be.
The Government subsequently indicated they intended bringing in an Order that front line border workers would be required to be vaccinated if they were in front line roles.
The employee in this case argued they were not a front line border worker. The customer service undertook a detailed health and safety assessment of the employees position and determined that the risk was sufficiently serious to require any employee that worked in that particular role to be vaccinated. All the information setting out their reasoning was provided to the employee as was the consequences of them refusing the vaccination.
In the circumstances Customs were bound by the Government’s Vaccination Order for front line workers, border workers and their health and safety assessment were considered robust.
With the employee still refusing to be vaccinated and there being no alternative roles the employer advised them they were left with no option but to dismiss them.
The Employment Relations Authority determined that Customs acted as a fair and reasonable employer could in the circumstances and therefore dismissal was not unjustifiable nor was the employee disadvantaged.
The circumstances of this recent decision were quite specific, and it does not mean that any employer can simply require an employee to be vaccinated.
What it does mean is, if in similar circumstances an employer, after undertaking a thorough health and safety risk assessment, determines that the risk can only be managed by staff in particular positions being vaccinated then any employee refusing to do so may find their position at risk.
If you are affected by such a decision, you should take the appropriate advice immediately.
