Unvaccinated Airport Worker Gets Interim Reinstatement
A recent decision of the Employment Court confirms that employers must consider all circumstances before termination.
The employment court has ordered interim reinstatement for a maintenance mechanic dismissed by Auckland International airport following the inclusion of border workers in the Covid-19 public health response (vaccinations) order because he was not vaccinated against covid-19. He was reinstated on special paid leave pending a determination by the Employment Authority on the merits of his challenge to the dismissal.
The case involved the dismissal of a long-standing respected maintenance mechanic employed by the Auckland International Airport, who had chosen not to be vaccinated for medical reasons. He said he had a medical condition and was “terrified about the health consequences”. He had been unable to get a medical certificate from his doctor as the doctor had declined to issue him one.
The court found that the steps taken by the airport were not those of a fair and reasonable employer. His Honour found there was no evidence the airport had worked through a modified work proposal the employee put forward. The court determined that the employer must consider the employees circumstances and work options.
The decision highlights the complexity for employers in the covid morass. One size does not fit all.
Decisions will need to be made on a case-by-case basis according to the circumstances.
Employers will need to consult individually with each employee before any decisions are made, all ongoing work options will have to be considered and not be unreasonably rejected, considering the objective of the order is to limit the risk of transmission by requiring certain work to be carried out by affected persons who are vaccinated. In other words, if there are other work options these will need to be made available to an employee. These may include special paid leave, leave, or reorganisation of how the work can be reasonably performed.
The Court decision reaffirms the legal obligation on all employers to act as a fair and reasonable one in the circumstances and good faith still apply.
Please contact Buckett Law for advice and assistance on how this effects you.
