Health and safety worker wins over $31k for unjustified dismissal

A health and safety worker fired for breaching his employer's COVID-19 rules has won over $31,000 after the Employment Relations Authority (ERA) ruled that his dismissal was unjustified.

Jonathan Collier, who was employed in 2011, was the health and safety representative of chemical products manufacturer and supplier Damar Industries until he was terminated in January 2022.

The entire situation began after Damar implemented a COVID-19 vaccine mandate, which Collier and five others were not supportive of. According to Collier, his opposition was due to the personal belief that the vaccine could harm him after his partner had experienced a reaction to the jabs.

But with Damar implementing a vaccine mandate in December 2021, Collier decided to take the first dose by January 2022 as he could not afford to lose employment because he had a family to support.

Breaching office return conditions

After Collier returned to the workplace in January, he was handed a series of rules that he needed to observe while waiting for his second dose.

The employee's termination stems from his disobedience on the fourth rule, where he was asked to observe separate lunch breaks and segregation for other staff members during breaks.

As heard by the ERA, Collier was spotted sitting less than a metre apart with a colleague without a mask on while he was in the tea or lunchroom. The day after, he was spotted eating lunch and sitting with others at a table on a grass area outside the staff break room.

After his first violation, Collier said he was not aware if he could sit with colleagues who were in his work "bubble" - a measure that was previously in effect in the company until about mid-November 2021 when employees were told that they no longer applied.

His employer, however, decided to terminate his employment within a month of his violations citing serious misconduct after he failed to comply with the company's Code of Conduct, specifically for refusing to obey lawful and reasonable instructions.

Collier raised grievances with the ERA, arguing that the vaccine mandate disadvantaged him and that he was unjustifiably dismissed.

ERA decision

The ERA sided with Collier on the case as it accepted the opinion of a long-standing health and safety expert that Damar's risk assessment was "not adequate for its purpose."

According to the expert, the company's risk assessment was "very brief and incomplete," with its criteria as "quite vague."

The ERA also acknowledged that the employer did not consider the degree risk in Collier's workplace and whether it could be addressed with measures other than mandatory vaccination.

"The conclusion expressed by Damar that it had no option but to introduce mandatory vaccination is unsupportable," the ERA said in its ruling. "There clearly were options but these were not considered sufficiently or at all. There was the option of paid leave."

According to the ERA, a fair and reasonable employer would not have regarded the risk assessment as compelling to Damar to implement mandatory vaccination because it had no choice.

"Collier was disadvantaged by the unjustified action of Damar," the ERA said.

Dismissal an 'unduly harsh punishment'

The ERA also ruled that Collier was unjustifiably dismissed by his employer.

According to the ERA, the employer did not sufficiently investigate the allegations against Collier before dismissing him, including giving him reasonable opportunity to respond to his employer's concerns.

The short notice and haste of the disciplinary meeting held with Collier was also unreasonable, according to the ERA.

The employer also seemed to neglect the length of Collier's service with Damar, his good record, as well as the availability of suspension from the workplace until he was due to have his second vaccine dose.

"Dismissal with immediate effect took no account of these factors at all and was an unduly harsh punishment," the authority said.

The ERA then ordered Damar to pay Collier a total of $21,850 for compensation as well as $11,400 as lost wages.