As lockdowns are lifted across New Zealand, workers have been left navigating a hard rule of law with little wriggle room for negotiations. According to Shine Lawyers’ employment rights expert, employees still have a right not to be discriminated against or victimised.

Pieter Venter from the international law firm says, “employees have a right not to be discriminated against or victimised and both employees and employers have a duty to act in good faith (in terms of the Employment Relations Act).”

“Ultimately, the right to decide whether or not you are vaccinated, is up to the individual. It’s a medical procedure that requires consent.”

“Exercising the choice has consequences in employment law, like most other choices in life,” he said.

How the law applies to different industries:

Mandated Vaccinations

The Government has mandated work be done by vaccinated people in specific sectors or business types including in border protection, health, education, prisons, hospitality, police, defence force and disability sectors.

The Government says vaccination in these sectors is an important tool for reducing infection and transmission.

“For those mandated to get the vaccine, unfortunately, options are limited. If a worker is in close contact with customers and there are no other options available to them to be placed elsewhere in the business, they may face redundancy and termination,” he said.

What happens to an employee’s rights to a fair termination?

“An employee dismissed by an employer following a redundancy or termination process still has the right to be treated fairly. That includes the right to a support person or legal representative through that process and the right to give input, for example lockdowns provided the important lesson that in many industries, we can work from home effectively.”

“I would encourage workers to negotiate terms that would limit contact with others but still allow completion of their jobs where possible. Unfortunately for some, an offer to negotiate will not stop the redundancy,” said Mr Venter.

“Many employers have little say in the matter. The employer will have to make an unvaccinated employee redundant where they cannot be assigned an alternative role– to not do so will be against the law.”

“If the process is poorly handled, a worker may still have grounds to raise a Personal Grievance. Depending on the circumstances, there may be various grounds like not providing an opportunity for input on possible alternatives, or not considering those, not advising of entitlement to a support person, discrimination, pre-determination and the like.

Non-mandated Vaccinations

“Non-mandated industries have been encouraged to do their own Health & Safety surveys to decide on risk factors to staff & customers and to develop a policy accordingly on the vaccination of employees.”

The Ministry has prescribed on its website, that businesses must first assess their COVID-19 exposure risk and then determine their action-plans according to that perceived exposure.”

“If certain work can only be done by vaccinated workers, businesses should set a reasonable timeframe for workers to decide if they will be vaccinated. If an employee cannot work during this time, special paid leave should be considered, especially in the short term while employers and employees discuss what happens next.”

“By requiring that certain jobs only be done by vaccinated workers, employees will be faced with the dilemma of vaccination in order to keep a job, and may feel they are being forced to accept the rule or be made redundant.”

Time off for Vaccinations

Venter said the good news is that the government is enforcing leave for employees to get vaccinated. This leave is paid leave and factors in the waiting times and distance required to access a vaccination clinic.”

Softening redundancies:

“There is a new requirement for a paid notice period when employment is terminated because of vaccination status. This is something that is crucial for New Zealanders to be across,” said Venter.

The Government has passed legislation to provide a minimum four-week paid notice period when people have their employment agreements terminated because they are not vaccinated, and their work requires vaccination.

This change will only apply to employees who do not have a notice period, or whose notice periods are shorter than four weeks. If an employee has a notice period longer than four weeks in their employment agreement, that will continue to apply.

Who can sue and for what?

“Employees who are dismissed or made redundant for not being vaccinated for not being able to do their job in circumstances where the Policy is not sound - like causing a breach of the good faith principle, can raise a Personal Grievance – that has various possible outcomes like re-instatement and back pay, compensation for emotional harm and all other remedies under the Employment Relations Act.

“Unfortunately, there is no scope to sue if the job is part of the list of mandated industries and the process was followed correctly – allowing the performance of the job will be in breach of the law,” said Venter.

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