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Opinion
The announcement from the government that employers do not have to rehire unvaccinated workers came as a shock. Employers should tread very carefully in this area, as it appears, to me at least, to fly in the face of employment law as it is applied today.
The new workplace guidance is centred on public health advice, which suggests that requiring vaccination in the workplace should only be permitted if it’s deemed an employee is at higher risk of catching and spreading COVID-19 while at work than they would otherwise be in the community.”
Wood said the advice is that some employers may be able to maintain vaccination requirements.
“The reason will need to be specific to their role and set of circumstances.”
OK so far. We all know by now that unvaccinated people present no more risk than the vaccinated. Most employers will be expected to drop mandates as soon as possible. Some may decide to continue them, as is apparently their right but this is likely to make business more difficult as more and more of the COVID regulations are abandoned in favour of normality. That is up to individual businesses, however, but I doubt that it would stand up in the employment court now that mandates have been dropped.
In the updated advice, Employment New Zealand said if someone’s job was terminated and took effect while the Government mandate was in place – that decision remains.
“A former employee does not have a right to get their old job back, or any other role with their previous employer.”
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Really? We are already expecting a number of court cases about wrongful dismissal now that the mandates have been proved unlawful for police and defence workers. The government is appealing that decision but only because it potentially opens up the floodgates for lawsuits concerning wrongful dismissal.
I would like to remind everyone of the cautionary tale of workers’ 90-day trial periods, where the legislation allowed workers to be fired within the first 3 months of their employment. The employment courts overturned many such dismissals; sometimes on the grounds of incorrect procedures but, on other occasions, it seems, just because they felt like it. The 90-day rule became as much of a den of vipers as most other pieces of employment law intended to apply some fairness to employers. You cannot just sack people these days.
But therein lies the problem. The situation is undefined. An employer can normally terminate a worker on medical grounds only if they cannot attend to their duties for prolonged periods due to their illness. While vaccine mandates were in place, employers could force unvaccinated staff to stand down, either under suspension or by actual dismissal. But those mandates are now being removed. Employees have been terminated for a situation that no longer exists. Surely that gives them a right, under employment law, to go back to their employment?
The government is leaving employers liable to expensive payouts if sacked workers go to the employment court.
By this action, Labour proves that it has completely abandoned its political roots. After all, by its very name, it is the party of the working man. Labour. But it stands up for the rights of working people no longer.
Michael Wood, rapidly becoming one of the ministers I despise most, accuses ACT of gutting workers’ rights, when workers who chose to be unvaccinated remain on the scrap heap as far as Labour is concerned.
So much for standing up for the rights of the workers, eh Michael? Or do people who chose not to be injected with a vaccine still under emergency-use authorisation not count as ‘workers’?
We all know that employers cannot fire people just because they feel like it. In fact, if you want to dismiss a worker these days, it is fraught with difficulty. A worker who is being deliberately difficult, such as being guilty of repeated unpunctuality, can be terminated, but the procedure is arduous and fraught with risk. In such situations I would bet on the worker winning out over the employer. Redundancy is another option but, in such cases, the employer may be forced to prove that the position has become redundant, and the role cannot be reinstated for at least 6 months. One sniff of the fact that there was in fact a performance issue and the employee wins again.
But here we have employees who had done nothing wrong, except refuse to take a vaccine that was not mandatory (supposedly) and who now find that they cannot be reinstated, even though vaccine mandates have now been removed for most employees. In fact, to demonstrate how ridiculous this is, an employer who fired a worker for not being vaccinated can now employ an unvaccinated person to replace them!
If that is not fertile pickings for employment lawyers, then I don’t know what is.
So how many workers who have not been reinstated will interpret their former employer’s position as an admission that they were fired over a performance issue, not over the vaccine at all? As soon as that happens, the queues for the employment courts will be miles long.
Some employers may be able to use the defence that the position is no longer available, as they have hired another worker. Some may be able to justify downsizing their staff because of bad economic conditions. Maybe. I am not sure that will save them from significant compensation payouts to former workers. The whole situation is fraught with difficulty and a lack of clarity. To me, it seems like more government discrimination against the unvaccinated, depriving one class of workers of rights enjoyed by all others. But this will not wash in the employment court.
This is precisely the type of discrimination the employment courts are designed to overrule.
This government seems determined to keep kicking those who wanted to make decisions for themselves and it is truly disgraceful. It demonstrates again that the whole vaccine programme was never about health, only about control. But the government may not get away with it this time. Whatever happens, though, it will be employers who pay the price. So, if you are an employer, take care out there.
Disclaimer: This article is an opinion piece only. Those with concerns should consult an employment adviser.
