The BFD | Mandates Are Not Yet Law

Currently, we have a number of groups of people, such as teachers and those in the healthcare sector, who are unaware of their legal rights.

The key is to get good legal advice and to form support groups with others in your industry.

**The following information is general in nature, and individuals are strongly encouraged to seek their own legal advice.

At the moment there is no Ministerial Order so the vaccination mandates are not yet law. Currently there is only a statement that there will be a Ministerial Order in the future. Only when the Minister’s announcement is published in written form, as a Ministerial Order, will the Ministerial Order be enforceable.

Any employer that mandates vaccination of its employees, or weekly testing of its employees, prior to the Order coming into force, could be acting outside of the law. Normally these kinds of orders take around four weeks to be published.

If you have already received a direction from your employer to be vaccinated or to undergo weekly Covid-19 testing, you should speak with an employment lawyer, as there is a real possibility that your employer has given you an unreasonable instruction that has no legal basis. If that turns out to be correct then you may be able to raise a personal grievance and ask for compensation.

If the Ministerial Order is similar to what was announced on Monday it is possible that, if there is a judicial review of that Ministerial Order (requiring teachers to get vaccinated to work), the High Court of New Zealand will rule the Order as ultra vires which means that it is beyond the powers conferred to the Minister by legislation.

The Court rejected the judicial review of the Order requiring border and customs workers to be vaccinated but it is being appealed to the Court of Appeal. There will be differences in the justification for requiring border and custom workers to be vaccinated, compared with that for teachers.

The justification for requiring vaccination may be reduced now that there is increasing evidence that the effectiveness of the vaccine is not as great as initially thought.

You could make an argument that the proposed requirement for teachers to be vaccinated is unreasonable because other occupations that have similar potential to transmit the virus are not subject to the same requirement.

A key justification for border and customs workers to be required to be vaccinated was that they were likely to be the source of a community outbreak because of their contact with people from overseas. This is not the case with teachers.

Once the Ministerial Order becomes law, teachers will have two options:

1. Seek legal advice. Even if the law requires that teachers be vaccinated, your employer still needs to act in good faith and as a fair and reasonable employer. Do not resign until after you have spoken to a lawyer. Someone else may apply for the order to be judicially reviewed, and if this happens the outcome could affect you. Depending on the outcome it could result in you retaining your job or being reinstated.

2. Apply for judicial review of the legal requirement for teachers to be vaccinated. If people lose their jobs and the Ministerial Order is determined to be unjustified and ultra vires in the High Court, then there is a decent chance that the terminated employees could be reinstated.

For a judicial review, a lawyer will want one ideal candidate whose circumstances give the application the best chance of success. The lawyer will aim to get the Court to agree that requiring teachers to be vaccinated is an unjustified limitation on the rights contained in the New Zealand Bill Of Rights Act 1990.

Be warned. A Judicial review, like any Court proceedings, will not be a pleasant experience. An applicant will need to be ready for a fight.

Speak to a lawyer, to ensure that you are advised on your best options legally, and the pros and cons of a judicial review. Use a lawyer who specialises in employment law and civil rights and liberties.