Cases of interest: September 2021

A summary of interesting or topical employment cases.

Best Health Foods Ltd v Berea [2021] NZEmpC 155

Employment Court – Personal grievance – Unjustified dismissal – 90 day trial – Compliance with notice period 

At issue was whether the employee was dismissed in accordance with the notice period in a valid 90 day trail provision in the employment agreement. 

The employee was employed as a Marketing, Sales and Production Coordinator. The employment agreement contained a 90 day trial provision requiring three days’ notice of termination. It was signed before the employee commenced employment. Her first task was to give a presentation to a visiting delegation. However, the visit did not proceed. She was then asked to update the employer’s website. However, she was not given any training or assistance with content and was not provided with the necessary IT to complete the task. On the fourth day of her employment, directors of the employer met with the employee. They dismissed her during the meeting on the basis that they were unhappy with her work. Later that evening the employer emailed the employee a letter giving her three days’ notice of her employment being terminated. The employer advised it would pay her for those three days without her being required to work. 

The Employment Relations Authority (Authority) found that the employee had been unjustifiably dismissed. The employer challenged that finding in three respects (see para 2):

  • The employment was terminated with three days’ notice.
  • The employee’s summary dismissal on performance grounds was warranted.
  • The employee’s contribution to her own dismissal should totally reduce any compensation award. 

The Employment Court (Court) dismissed all three aspects of the challenge. It found that on the evidence the employee was verbally dismissed at the meeting without notice, rather than in writing later that evening (see para 68). Since the provisions of the otherwise valid 90 day trial provision were not complied with, the employer could not rely upon it (see para 72). The employee had followed all instructions. The Court found the employer had not been prepared for the employee’s arrival (see para 64) and had failed to give her sufficient orientation (see para 82). A fair and reasonable employer could not have dismissed her on performance grounds (see para 87). The employee did not contribute to the circumstances leading to her dismissal (see para 97). 

The Court dismissed the challenge. It confirmed the remedies awarded by the Authority, being $3,774 in lost wages and $12,000 in compensation (see para 100). 

Best Health Foods Ltd v Berea [2021] NZEmpC 155 [PDF, 155KB] (external link)  

GF v New Zealand Customs Service [2021] NZERA 382

Employment Relations Authority – Personal grievance – Unjustified dismissal – Unjustified action causing disadvantage – COVID-19 – Border worker – Vaccinations Order 

At issue was whether an unvaccinated employee was unjustifiably dismissed or disadvantaged when her employment was terminated on the basis of the COVID-19 Public Health Response (Vaccinations) Order 2021 (external link) (Vaccinations Order). 

The employee (who asked that her name not be published) was employed in a fixed term border protection officer role to assist in managing the risk of COVID-19 entering New Zealand in the maritime environment. In late 2020, the government identified border and managed isolation workers as being priority groups to be offered the COVID-19 vaccine. The New Zealand Customs Service (Customs) encouraged its employees to be vaccinated, but indicated it was not compulsory. Over the next few months, Customs tried to contact those employees who were not vaccinated. However, the employee did not engage with the employer regarding the vaccination. On 8 April 2020, the Prime Minister announced that front line border workers must be vaccinated. 

Customs undertook a health and safety risk assessment and found that the employee could not continue in their border role in light of the Vaccinations Order. Customs considered suitable redeployment options for the employee but found none were available (see para 46). The employee did not provide their reasons for deciding not to be vaccinated. The employee did say they considered the Vaccinations Order a breach of their right to refuse to undergo medical treatment under s 11 (external link) of the New Zealand Bill of Rights Act 1990. Customs acknowledged the employee’s right to decline the vaccination but emphasised it was not trying to force its employees to be vaccinated (see para 60). It was Customs’ view that the employee was an “affected worker” under the Vaccinations Order and its obligation was to ensure that border workers were vaccinated (see para 63). 

The Authority found that the employee had been provided with numerous opportunities to engage with Customs about any concerns with the vaccination process and its health and safety assessment (see para 96). The Authority held that the employee’s role had to be performed by a vaccinated person under the Vaccinations Order (see para 101). Customs’ decision to dismiss the employee was thoroughly considered “in a very difficult contextual background” (see para 100). The Authority noted that good faith obligations go both ways and found the employee failed to engage with Customs (see para 113). The personal grievance was dismissed (see para 117). 

GF v New Zealand Customs Service [2021] NZERA 382 [PDF, 180KB] (external link)  

GF v Minister of COVID-19 Response [2021] NZHC 2526

High Court – Judicial review – COVID-19 – Border worker – Vaccinations Order 

At issue was whether the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order) was lawful. The applicant, who was the same person as the employee in the Authority case directly above, sought judicial review of the order. 

The applicant challenged the lawfulness of the Vaccinations Order on two grounds (see para 3):

The applicant asked the High Court to declare the Vaccinations Order was unauthorised and set it aside (see para 4). 

The applicant made various submissions, including that the Vaccinations Order was (see paras 11–13):

  • invalid because it had been signed by an Associate Minister of Health rather than the Minister of COVID-19 response
  • not prescribed by law for the purposes of the CPHRA
  • a medical experimentation because it only had provisional consent
  • in breach of the CPHRA because it was “unlikely” the Minister was satisfied that it would be appropriate in achieving the purposes of the CPHRA if he had considered social and economic factors such as “mass terminations of employment”
  • an unreasonable limitation on the rights guaranteed by the New Zealand Bill of Rights Act 1990 (external link) , specifically the right to refuse to undergo medical treatment (s 11 (external link) ) and freedom from discrimination (s 19 (external link) ). 

The High Court found that the Vaccinations Order was neither beyond the legal authority of the CPHRA nor irrational (see para 127). It dismissed the applicant’s submissions as misconceived for the following reasons:

  • The Associate Minister of Health signed the Vaccinations Order. The Associate Minister was a medical doctor and infectious disease physician with a PhD in epidemiology prior to entering Parliament. She lawfully signed the Vaccinations Order under s 7 (external link) of the Constitution Act 1986 at the request of the Minister of COVID-19 response because he was unavailable at the time (see paras 20–33).
  • The Minister was satisfied the Vaccinations Order was appropriate to achieve the purpose of the CPHRA. The Minister was convinced there was a strong public health rationale as border workers may be exposed to and infected by COVID-19 in the course of their work and go on to transmit the virus in the community. The Court found that conclusion was “logical and rational” given the advice he had received (see paras 29–41).
  • The provisional approval for the use of the Pfizer vaccine in New Zealand was granted on the basis of comprehensive information. The High Court noted it was originally granted provisional approval in the United States but then went on to receive full approval. The High Court found it was not possible to categorise use of the vaccine as being the equivalent of medical experimentation (see para 47).
  • The High Court found it was clear the Minister did have regard to social and economic factors when making his decision, even though the requirement to do so was discretionary rather than mandatory (see para 57). It found the claim that the Vaccinations Order could have resulted in mass terminations of employment was an over-statement when over 95 per cent of the employee’s colleagues were in fact vaccinated (see para 52).
  • The advice to the Minister considered whether less intrusive means of reducing the risk of COVID-19 being transmitted to and by border workers, such as social distancing, masks, cleaning and testing, could have been as effective as vaccination, and found that they could not be (see paras 82–86). The Court found that to the extent that the requirement to be vaccinated might amount to discrimination, the benefits of the requirement outweighed any discrimination. The limitation was proportional and demonstrably justified (see para 93).

The application for judicial review failed (see para 127). 

GF v Minister of COVID-19 Response [2021] NZHC 2526 [PDF, 275KB] (external link)  

WN v Auckland International Airport Ltd [2021] NZEmpC 153

Employment Court – Jurisdiction of Employment Relations Authority – Ordering interim reinstatement in advance of dismissal – COVID-19 – Border worker – Vaccinations Order 

At issue was whether the Authority had the ability to order interim reinstatement pre-emptively before the employee was dismissed. 

The employee worked at the Auckland International Airport (Airport) for 15 years. His role was covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order). The employee decided against being vaccinated. The Airport effectively placed the employee on paid suspension until his termination date of 30 September 2021. The employee sought an order from the Authority prohibiting the termination of his employment. The Authority issued a minute stating that it did not consider it had the statutory basis to make such an order due to its “anticipatory nature” (see para 3). 

The employee challenged that position in Court with urgency. The relevant legislation was s 127 (external link) of the Employment Relations Act 2000 (Act). Section 127(1) stipulates:

The Authority may if it thinks fit, on the application of an employee who has raised a personal grievance with his or her employer, make an order for the interim reinstatement of the employee pending the hearing of the personal grievance. 

The Court discussed that interim reinstatement is usually considered in the context of an unjustified dismissal personal grievance after a dismissal had taken place. However, it was open to the Authority to order an interim reinstatement when the personal grievance had been raised as a disadvantage grievance rather than an unjustified dismissal (see para 25–26). 

The Court found that the Authority did have jurisdiction to make the sought order (see para 37). The decision centred on whether the Authority had the ability to do so, rather than whether or not it should have made the order sought in the circumstances. 

WN v Auckland International Airport Ltd [2021] NZEmpC 153 [PDF, 170KB] (external link)

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