ERA looks into worker's efforts to question vaccination requirement

The Employment Relations Authority (ERA) recently dealt with a case involving a worker's personal grievance claims against their former employer, a health organisation.

The case centred around COVID-19 vaccination requirements and the timeliness of raising personal grievances.

This decision highlights the statutory timeframes for raising personal grievances and the potential consequences of delays.  It also addresses issues that arose during the implementation of COVID-19 vaccination mandates in workplaces.

Vaccination mandate and initial meetings

The worker, a forensic mental health nurse, had been employed by the health organisation since 2014. As part of their role, they worked within a team providing health services to various prison facilities. The worker was also a member of a nurses' union.

In April 2021, the COVID-19 Public Health Response (Vaccinations) Order 2021 came into force, requiring certain workers, including the worker in question, to be vaccinated unless they had an exemption.

In November 2021, the worker met with their employer on three occasions to discuss the vaccination requirements. During these meetings, the worker expressed safety concerns about the COVID-19 vaccine and explored the possibility of obtaining an exemption. The worker was supported by a union organiser during these meetings.

At the first meeting on 5 November 2021, the worker expressed safety concerns associated with the COVID-19 vaccine and explained their views on their rights as a New Zealand citizen to decide against being vaccinated.

The employer and worker also discussed possible alternative work arrangements, but the employer stated these could not be accommodated due to resourcing limitations.

The employer's operations manager stated:

"During this meeting, [the worker] acknowledged his inability to continue working for [the employer] after 11.59pm, 15 November 2021 (the deadline for when the new COVID-19 Vaccination Orders were to come into force)."

This acknowledgment played a crucial role in the subsequent events and legal proceedings.

Termination of employment and personal grievance

Following the meetings, the worker was given a two-week stand-down period on special leave to allow them to obtain an exemption in accordance with the updated exemption requirements. The worker initially said they would explore the potential to take an alternative vaccine.

However, on 1 December 2021, the worker wrote to the employer confirming they were no longer pursuing a medical exemption. After further consultation, the employer gave the worker a notice of termination on 8 December 2021, with the final day of employment being 5 January 2022.

It wasn't until 9 October 2022, approximately nine months after the termination, that the worker raised a personal grievance with the employer. The worker claimed unjustified disadvantage, alleging that the employer had attempted to induce and coerce them into being vaccinated, and discrimination based on medical disability.

Employer's response and legal requirements

The employer disputed the worker's claims, arguing that they were raised outside the statutory 90-day period for personal grievances.

They also contended that the worker had failed to adequately articulate their concerns during the November meetings.

The employer argued:

"[The worker] had failed to particularise the nature of his safety concerns. It said [the worker] did not reference or explain what actions or omissions by [the employer] had contributed to his concerns. It also said it was not able to rectify or remedy any of [the worker's] concerns."

According to the ERA, the Employment Relations Act 2000 stipulates that personal grievances must be raised within 90 days from when the alleged grievance occurred or came to the employee's notice, whichever is later. The Act does provide for exceptions under certain circumstances, but these are limited.

The ERA's decision

The ERA found that the worker had not adequately raised their personal grievance claims during the November meetings. The Authority stated:

"Based on the available evidence, [the worker] did not adequately raise a personal grievance for unjustified disadvantage during the November meetings with [the employer]. [The worker's] safety concerns about the COVID-19 vaccine did not specifically identify his claimed grievances for disadvantage by [the employer]."

This finding emphasises the importance of clearly articulating grievances to employers within the specified timeframe.

The Authority also addressed the worker's attempt to seek leave to raise their grievances out of time. The worker argued that their union representative had not properly represented their interests during the November meetings.

However, the ERA declined to grant leave, citing two main reasons:

1. Insufficient evidence to assess the appropriateness of the union representative's advice and representation.

2. Significant delay in formally raising the grievance claims.

The ERA noted:

"Given [the worker's] employment ended on 5 January 2022, it took almost two years and three months before [the worker] formalised his dismissal claim. [The worker] was also duly represented from at least the time he formally raised his personal grievances in October 2022 up until April 2024."

The ERA concluded:

"[The worker's] grievance claims for unjustified disadvantage and unjustified dismissal were not raised within the statutory time frame. [The employer] did not consent [to the worker] raising these claims out of time. Accordingly, the Authority has no jurisdiction to investigate his claims."

This decision underscores the importance of timely action in employment disputes and the potential consequences of delay in raising personal grievances.