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Case summary WXN vs. Auckland International Airport

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Anthony Harper

Unvaccinated Auckland International Airport employee granted interim reinstatement

The Employment Court has granted an employee interim reinstatement after his employment was terminated for refusing to receive a COVID-19 vaccine. His employer, Auckland International Airport, asserted that the termination was justified because the employee was required to be vaccinated under the COVID-19 Public Health Response (Vaccinations) Order that covers border, education and healthcare workers.

The Court granted interim reinstatement on the basis that it was arguable that the employee’s position was not captured by the vaccinations order and that the Airport had not followed a fair process due to the lack of consultation with the employee. The employee will remain on paid leave for two months followed by unpaid leave until his case is determined by the Employment Relations Authority.

The case demonstrates that, prior to terminating an employee’s employment, employers should ensure the employee’s work is covered by the order or that mandatory vaccination is otherwise justified and that they follow a fair and reasonable consultation process.

The facts

The employee was a senior mechanical maintenance technician working on air bridges, conveyors and air conditioning. He had been employed by Auckland Airport for over 15 years and was well respected by his colleagues.

Auckland Airport had already decided that vaccination would be necessary for airport staff from 30 September in accordance with its health and safety risk assessment. That date was brought forward to 1 September when the vaccination order came into force. Auckland Airport consulted with the union and decided that engineering work was covered by the order. It notified the employee on August 23 that if he did not have his first vaccine by August 31, a decision on termination would be made on September 1.

The employee’s direct manager phoned him and told him that he did not want to lose him as he was the best person in his position that the company had ever had. The Airport encouraged the employee to be vaccinated by the deadline and considered alternatives proposed by the employee. But it ultimately decided, since the employee had not committed to vaccination, to terminate his employment effective 30 September. It gave the employee an additional 1 month’s ex-gratia payment.

The employee argued his work came within an exception in the vaccinations order for “excluded airport persons” because his position did not involve direct interaction with international arriving passengers and involved work in areas that were often inaccessible to international passengers and that the Airport had not followed a fair process prior to terminating his employment.

What did the Employment Court decide?

The Court considered the following issues in determining whether the employee’s claim met the serious question threshold regarding his personal grievance for unjustified dismissal:

  1. Whether the employee’s position was captured by the vaccinations order; and
  2. Whether the employer’s process was fair and reasonable.

On the first issue, the employee argued that the categories of positions listed under the vaccinations order should be interpreted narrowly so as to give them a meaning consistent with the Bill of Rights Act. The Court considered the specific wording of the vaccinations order and specifically whether the employee was an “excluded airport person” and held that there was an arguable case that the employee could be excluded from the order. It also held that the order is required to be read in conjunction with Bill of Rights Act and that a narrowing of the provision was also arguable.

On the second issue, the Court found that the employee’s claim that the employer had not followed a fair process was arguable on the basis that the steps the Airport took were not those which could be expected of a fair and reasonable employer. The Airport did not consider the employee’s proposal, it did not address his concerns regarding his medical condition, and it did not give him further time to discuss the situation. The Court noted that an employer may have an obligation to at least consider alternatives when an employee has a justifiable reason not to be vaccinated, as part of an employer’s good faith duty.

What does this mean for you?

If your business has positions that are captured by the vaccinations order, you should be careful to appropriately categorise them and seek legal advice or guidance if it is unclear. You should also follow fair process requirements and consult with employees prior to terminating their employment as employment law continues to apply.

Article co-written by Lauren Dennehy and Madison Hornblow (Summer Clerk).