Border worker fired after refusing COVID-19 vaccine lodges legal fight

frontline worker who refused to have the COVID-19 vaccine after the New Zealand government issued a public health order has lodged a legal challenge against her dismissal.

The port worker, who has been kept anonymous, filed a case with New Zealand’s Employment Relations Authority after she was sacked from her temporary position in May this year following the government’s directive a month earlier. The order required all frontline workers to be vaccinated against COVID-19 from April 30 onwards to continue working at border facilities.

According to the Authority’s determination published earlier this month, the employer carried out risk assessments of any tier one workers who had not been vaccinated, and determined that the employee in question required the jab to continue in her role, a decision she contested.

The employee has sought an order to be reinstated in her employment, alongside an application to move the issue to the Employment Court, rather than have it determined by the Authority, because she claimed the case could pose important questions of law.

Read more: Worker fired for refusing vaccine loses unfair dismissal claim

The employee’s advocate Ashleigh Fechney said the case would bring into question whether an employer can change an employee’s terms and conditions to include mandatory vaccination, whether mandatory policies are “lawful and reasonable” and whether mandatory vaccination contravenes New Zealand’s Bill of Rights Act.

However, Authority member David Beck said neither the Authority or the Employment Court has the power to question or rule upon the actions of the government responsible for imposing the public health order. If the employee wanted to challenge the legality of forcing frontline workers to be vaccinated, she will need to take the issue to the High Court.

Beck also argued that no changes had been made to the employee’s terms and conditions of employment in that the location, tasks and duties remained the same. He also said the employee had not been directed or instructed by her employer to have the vaccination – rather the direction was made by the government.

As a result, he ruled that the case will remain with the Authority and set the case for an investigation meeting in due course.

Undoubtedly, employers in both New Zealand and Australia will be keeping a close eye on the outcome of the case. It’s the first of its kind to be heard in either country as employers continue to grapple with the grey area around mandatory vaccinations.

In Australia, some states have imposed similar public health orders requiring workers involved in hotel quarantine to have the jab or to comply with daily saliva testing. But the recent outbreak linked to a limousine driver in Bondi who was transporting international flight crew has highlighted the limited power of state health authorities.

Read more: Managers want penalties for staff refusing vaccine

While all NSW health and police staff involved with the quarantine program had been vaccinated, it appears subcontracted workers had not been presented with the same requirement. A public health order was in place requiring they take part in saliva testing each day, but questions remain as to how long the driver had been working before returning a positive test.

Speaking to HRD, Rob Jackson, workplace relations partner at Rigby Cooke Lawyers, said the bulk of the responsibility for ensuring compliance of workplace health and safety regulations lies with the employer.

“The employee has a lesser obligation to look after their own welfare and follow a reasonable direction from their employer,” he said.

“If a subcontractor turned up to work, did what they were told and didn't take any unnecessary risk, they're not going to have any liability. But in contrast, if that employer required the subcontracted workers to get the vaccine, to take a test or wear a mask for example, and it was directed at the individual worker and they flouted the rules with no excuse, there is the possibility of legal action.

“But regulators have been generally reluctant to prosecute individual employees and historically, there have been very few cases involving rank and file employees.”

Without intervention at the federal government level, private employers will continue to tread carefully on mandatory vaccination policies. Jackson said it’s likely other countries more advanced in their vaccine rollout, such as the UK and the US, will face these types of legal challenges earlier and could offer insight into how the courts here may view mandatory policies.

But unlike the UK, both Australia and New Zealand are experiencing high levels of hesitancy among those who are yet to be vaccinated. Australia ranks in the top three countries globally, behind Russia and the US, with 17% of the population unwilling to be vaccinated, according to a global vaccine tracker.

In New Zealand, 13% of the population say they are unlikely to be vaccinated if offered. The main reasoning for hesitancy in both Australia and NZ continues to be concern about long-term side effects, particularly of the AstraZeneca vaccine. Australia’s rollout hit yet another hurdle last week after the health guidance advised only those aged 60 and above should be given AstraZeneca. But some experts believe the recent outbreaks in Melbourne, and now Sydney, may provide more of an impetus for residents to get vaccinated.