ERA ruling highlights employer's thorough risk assessment process
The Employment Relations Authority (ERA) recently dealt with a case involving a worker who challenged his dismissal after refusing to comply with a workplace vaccination policy.
The worker argued that the policy violated his right to make his own medical decisions and that alternative arrangements should have been considered before termination.
The worker claimed the consultation process was merely a formality, with the employer having already decided on mandatory vaccination before seeking staff input.
He presented evidence of scientific studies suggesting natural immunity might be as effective as vaccination and questioned whether the employer's risk assessment adequately considered less intrusive safety measures.
Central to the worker's case was his belief that the employer had failed to properly explore alternatives to dismissal, including his suggestion to work in areas with minimal contact with other staff. He argued that his dismissal was disproportionate and that the employer had not acted as a fair and reasonable employer could have in the circumstances.
The worker started his role as warehouse coordinator in March 2019 at a distribution centre that employed approximately 45 staff across two shifts. His duties included coordinating stock movement, supervising a team of four, and liaising with delivery drivers who visited the premises daily.
When COVID-19 emerged in early 2020, the employer introduced various safety measures including mask wearing, hand sanitising stations, and shift adjustments to reduce contact between staff.
These measures remained in place throughout 2020 and into 2021, with regular updates based on public health guidance.
In October 2021, as the Delta variant of COVID-19 spread throughout the country, the employer announced plans to implement a vaccination policy. This followed a risk assessment conducted in late September which identified particular concerns about the warehouse environment, where staff worked in close proximity and the building had limited ventilation options.
The worker expressed hesitation about vaccination in an email to his manager on 15 October 2021. According to evidence presented to the ERA, he wrote: "I need more time to consider this and would prefer to wait for more information about long-term effects before making my decision."
The employer held three staff consultation meetings about the proposed policy between 18 October and 10 November 2021. The worker attended all meetings and raised several concerns about vaccine safety and efficacy. He submitted a written statement on 5 November 2021 outlining his position.
During the ERA hearing, the employer provided evidence of their consultation process, including minutes from staff meetings, written feedback received, and email communications with staff. They stated that 42 of 45 staff had participated in the consultation process, with feedback ranging from strong support to significant concerns.
The warehouse manager met with the worker on 20 October 2021 to discuss his concerns. According to the warehouse manager's testimony, during this meeting, he provided the worker with links to official health department information about vaccine safety and explained the rationale behind the proposed policy.
In his evidence to the ERA, the worker contested the effectiveness of this meeting. The ERA decision noted: "[The worker] stated that the meeting lasted only 15 minutes and he felt his concerns were dismissed. He testified that he brought up several peer-reviewed studies that showed natural immunity might be as effective as vaccination, but [the warehouse manager] wasn't interested in discussing them."
The worker's written feedback during the consultation process was quoted in the ERA decision: "[The worker] has genuine concerns about the speed at which these vaccines were developed. [The worker] believes enforcing vaccination violates his right to make informed medical decisions about his own body."
The health and safety officer, who had been with the company for eight years, testified that all feedback was considered during the consultation period. According to the ERA decision: "[The health and safety officer] confirmed that they had extended the implementation timeframe by one month and added additional categories for temporary exemptions based on staff input, which she believed demonstrated the consultation was genuine."
The employer's case relied heavily on their risk assessment document dated 28 September 2021. This assessment, conducted by the operations director with input from the health and safety committee, examined the specific working conditions and operational requirements of the distribution centre.
The ERA decision outlined the key risk factors identified in the assessment:
The building had limited natural ventilation with only two small windows that could be opened in the main work area
Staff worked within 1-2 metres of each other for extended periods during picking and packing operations
The morning handover required all staff to gather in the small lunchroom, which had no external windows
Delivery drivers from outside companies entered the warehouse daily, creating potential exposure to external contacts
Three staff members had disclosed medical vulnerabilities to COVID-19 that put them at higher risk of serious illness
Based on these factors, the risk assessment concluded that vaccination was necessary alongside other control measures to adequately protect workers. The document noted that while existing measures had been effective at preventing workplace transmission to date, the increased transmissibility of the Delta variant created new risks that needed addressing.
According to the ERA decision, the worker questioned the assessment's conclusions, arguing that more attention should have been given to improving ventilation and creating physical barriers between workstations as alternatives to mandatory vaccination. He presented information suggesting that transmission risks could be adequately managed through enhanced cleaning protocols and better air circulation.
The operations director's testimony was quoted in the ERA decision: "[The operations director] stated that the nature of [the] warehouse layout and workflow made physical distancing impractical without major operational disruption. [The operations director] considered other options but determined vaccination offered the most effective protection while maintaining necessary business functions."
The employer provided evidence that they had explored several alternatives before proceeding with the worker's dismissal. Meeting notes and email exchanges presented to the ERA showed discussions of various accommodation options over a six-week period between the announcement of the final policy and the termination decision.
On 6 December 2021, the human resources manager met with the worker to discuss options.
The human resources manager's testimony was recorded in the ERA decision: "[The human resources manager] stated that they looked at all vacant positions in the company but none were suitable for remote work or had significantly reduced contact with others. [The worker's] role required physical handling of goods and regular interaction with 12-15 colleagues daily."
According to the ERA decision, the worker disputed whether alternatives were seriously considered. He stated he had suggested working in the rarely-used secondary storage area where he would have contact with fewer staff, but this option was rejected. The decision noted: "[The worker] testified that he had also proposed working different hours to reduce contact with others and offered to undergo regular testing at his own expense."
The chief operating officer, who had final authority on policy implementation, explained their decision-making process. The ERA decision said: "[The chief operating officer] stated that they genuinely considered whether they could accommodate [the worker's] position while meeting their health and safety obligations to all staff. Unfortunately, the nature of their operations and [the worker's] specific role made this impractical without creating undue hardship to the business."
The final dismissal occurred on 17 January 2022 after the worker confirmed he would not be getting vaccinated. He was provided with four weeks' pay in lieu of notice as per his employment agreement. The termination letter acknowledged his length of service and performance but stated that the company could not make exceptions to its health and safety policy.
In rejecting the worker's claim, the ERA applied the test from section 103A of the Employment Relations Act, which asks whether the employer's actions were what a fair and reasonable employer could have done in the circumstances.
The ERA found the employer had:
Based their policy on a genuine risk assessment specific to their workplace
Undertaken meaningful consultation with staff including the worker
Explored alternatives to dismissal
Followed a fair process when implementing the final decision
The ERA member's findings were quoted in the decision: "The evidence shows [the employer] took a structured approach to addressing a difficult situation. [The worker's] concerns were heard and considered, though ultimately not accommodated due to [the employer's] health and safety obligations toward all staff."
The decision acknowledged the worker's sincerely held views: "[The worker] had genuine concerns about vaccination which were deeply important to him. However, [the employer] was required to consider the health and safety of all staff, not just individual preferences."
In the final determination, the ERA concluded: "The dismissal was substantively justified given the nature of [the worker's] role, the workplace environment, and the health risks identified. The process followed was fair and reasonable in the circumstances that existed in January 2022."
The ERA declined to award costs to either party, noting that both had acted in good faith throughout the dispute and the case raised important questions about the balance between individual rights and collective safety in the workplace.
