No jab, no job: when refusal can lead to dismissal and a personal grievance

"No jab no job" disputes often turn into process failures: rushed decisions, weak consultation, and ignoring alternatives. Even where an employer believes a requirement applies, the process still matters under section 103A (test of justification).

No Jab, No Job

All work done in managed isolation and quarantine settings must only be undertaken by workers that have been vaccinated. This was then extended to apply to the health and disability sector, education services and prisons.

The government has announced that how those working in high risk settings involving close proximity public contact will also be required to be vaccinated.

Those holding positions that require vaccination will either need to get vaccinated, or find an alternative option with their employer, and in the absence of alternative redeployment, if the employee does not get vaccinated, they will most likely face dismissal.

There have been several interim reinstatement applications heard and decided on by the Employment Relations Authority relating to vaccinations. All have been unsuccessful so far.

Covid-19 Update

WXN v Auckland International Airport Ltd [2021] NZEmpC 205, 23 November 2021

The recent challenge to the Employment Court has overturned this decision and WXN is reinstated to the payroll. WXN refused to take the vaccine and instead gave a proposal to make amendments to his role to evade the scope of the Vaccination Order. The airport did not accept this. WXN was given notice of termination, seemingly with a limited process.

In his case WXN was clear that he wished to remain as an employee on leave to give him the opportunity of discussing the issues of continuing employment to consider his vaccination options. He had declined to have a vaccination because of his concerns about the vaccine and how it might effect his health condition.

The claim was for interim reinstatement and when considering that issue the question is answered in view of these factors:

1. Whether there is a serious question to be tried, in relation to the claim of unjustifiable dismissal and in relation to the claim for permanent reinstatement.
2. The balance of convenience between the parties.
3. The overall justice of the case.

There was a serious question to be tried given that the process adopted that resulted in WXN's dismissal was light in demonstrating comprehensive consultation, and this included the limited flexible consideration by the employer about alternatives to termination of employment.

When WXN told his employer that he would not be vaccinated it was his proposal that he should retain his role but access in the workplace be restricted to prevent his contact with arriving passengers at the Airport. WXN's proposals was not investigated, as was WXN's concerns about possible effects his receiving the vaccine would have to his health.

This really came down to was whether the process undertaken by the employer was one a fair and reasonable employer could have taken. The strength of WXN's arguments in the Court persuaded the Court that his case for permanent reinstatement was arguable.

In assessing the balance of convenience and the overall interests of justice the Court was satisfied that WXN should be granted interim reinstatement.