BuckettLaw was happy to successfully assist its client Mr Maher in his case against his former employer, Solutions Team Limited.
In its determination the Employment Relations Authority (ERA) found Solutions Team Limited had unjustifiably dismissed Mr Maher, awarding him $17,500 in compensation, lost wages of $23,267, and other monetary loss of $2,761.31.
Solutions Team Limited sought disclosure from Mr Maher of his vaccination status. In response to that request, Mr Maher asked to see the employer’s vaccination policy as he had not been provided with one and indicated he would disclose his vaccination status. The Director of Solutions Team Limited, Mr Simon Louttit, subsequently approached Mr Maher at his desk and summarily dismissed him. Mr Louttit then pursued Mr Maher out of the building to his car and stood in front of the car preventing Mr Maher from leaving. Solutions subsequently sent a letter to Mr Maher advising it had dismissed him for refusing to disclose his vaccination status (in circumstances where Mr Maher had not in fact refused to disclose it).
The ERA determined the dismissal of Mr Maher unlawful because Solutions Team Limited:
Did not clearly enunciate the consequence of not being vaccinated.
Failed to properly apprise Mr Maher of its concerns about his choice not to immediately reveal his vaccination status.
Did not articulate a clear vaccination policy or consult with staff about one.
Failed to reasonably engage with Mr Maher in a discussion about the issues surrounding vaccination and the consequences of not getting vaccinated.
Did not put its presumption that he was not vaccinated (Mr Maher was) to him.
Did not provide Mr Maher with an opportunity to make a submission on the decision to end the employment relationship before the dismissal occurred.
Did not engage in any discussion about alternatives to dismissal.
Could have engaged further with Mr Maher before dismissing him.
The ERA also determined that the reason advanced for the dismissal (refusal to reveal vaccination status) was “insufficient ground to constitute serious misconduct in all the circumstances”.
If you would like to read the ERA’s full determination, please find it here:
2023-NZERA-185.pdf
Take Aways from this Determination
For employers, the covid-19 pandemic was a confusing time. Many employers were confused about what their obligations were in relation to imposing a vaccination policy, and the process for dismissing an employee if they did not meet a vaccination requirement. Conflicting advice was also prevalent in the industry at the time. The procedural requirements set out in the Employment Relations Act 2000 however did not change, and it ought to have been clear to all employers and their advisors that these procedural requirements still needed to be adhered to in a covid-19 context.
Mr Maher’s case was one where the employer did not only get its substantive decision wrong, but it also fundamentally failed to meet the procedural requirements set out in the Act. The situation could arguably have been avoided if the employer had obtained legal advice at the relevant time. BuckettLaw encourages all employers to reach out and seek advice before embarking on any process that may lead to a dismissal and/or disadvantage to an employee in their employment. Obtaining such advice from an early stage can often prevent an employment dispute from arising, or if one does arise it may prevent the need to pay out large sums. ‘Biting the bullet’ and incurring the costs of obtaining legal advice from the outset is always money well spent.
For employees, it is important to know your rights. If you feel you have been unfairly treated by your employer, contact us today. It is important to know that you have 90 days to raise a personal grievance with your employer from the date you are dismissed. Similarly, you have 90 days to raise a personal grievance from the date the employer committed an unjustified action. Too often we see employees losing out on their ability to take their concerns further because they do not promptly seek legal advice. BuckettLaw encourages all employees to do so, and to do so promptly, because you may otherwise lose out on the opportunity to pursue your concerns.
Get in touch with our specialist employment law team if you need any advice.
Matt Belesky, Senior Solicitor
