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No jab, no job – Dismissal Justified

GF v New Zealand Customs Service is the first Employment Relations Authority decision relating to an employee’s termination because they refused to get a COVID-19 vaccination.

The employee was a Border Protection Officer, and started with Customs in October 2020. Customs conducted a health and safety risk assessment and determined Border Protection Officers needed to be vaccinated. They involved staff when undertaking the risk assessment. In April 2021 the government introduced the mandatory requirement for frontline border workers to be vaccinated.

Customs put a great deal of time and effort into educating their workforce about the vaccine and encouraging discussions with those who were resistant. GF refused to disclose why she wouldn’t be vaccinated and claimed her position wasn’t covered by the government’s mandate.

There were a number of meetings with the employee and her representative and Customs had been very clear about the consequences (termination of employment), of not being vaccinated.

Redeployment was considered however there was no suitable positions available and GF’s employment was terminated. GF raised a personal grievance seeking redeployment to her border position.

The Authority agreed with Customs that a Border Protection Officer fell under the government’s mandatory vaccination requirements and that the dismissal was justifiable. There was some criticism about the time it took Customs to respond to the employee initially, however the Authority also found they gave GF significant information and ample opportunity to respond.

This case provides a degree of certainty for employers who have employees covered by the government’s vaccination mandates. The key learnings are:

  • Conduct a health and safety risk assessment
  • Include input from your employees
  • Educate your employees about the vaccination
  • Engage in discussions with hesitant employees
  • Advise the employee to bring a support person / representative to those discussions
  • Advise of the potential outcome of not being vaccinated (redeployment or termination)
  • Consider alternatives to termination
  • Make the decision and provide notice (as per the Employment Agree)

If you have any questions at all, please contact us for guidance.

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