The Ministry of Social Development’s decision to fire around 220 unvaccinated staff risks being seen as “punitive, and political” according to a leading employment lawyer.

Employment law specialist Shelley Eden, a director at Auckland law firm Gaze Burt, said the decision to terminate could breach the Human Rights Act or the Employment Relations Act. 

From a legal point of view, it was a risky move, especially following government legal advice to pause.

“It risks being seen to be punitive, and political”, said Ms Eden.

Any employment policy, even if it was based on a valid risk assessment, could not be applied in a standardised way to all staff. Government agencies had to consider each employee’s situation equitably, and the policy tailored to suit.

“They still have to implement the policy fairly.

“Depending on the reason for a person not vaccinating, carrying on with a termination could be a discriminatory action. It could breach the Human Rights Act or the Employments Relations Act.”

She said that to justify dismissal, termination decisions by an employer not subject to a Government mandate had to be based on a valid and current health and safety risk assessment, and a policy that had been consulted on with employees.

And that all other reasonable alternatives to termination must have been exhausted. Without those elements, there was a risk of successful personal grievance claims being raised.

“I would be concerned that a decision made without those three elements present could be seen by the courts as punishing the employee for not vaccinating, or even a political decision, wanting to support the government’s position on vaccinations.”

Ms Eden said any decision to fire employees who refused vaccinations, as a means of punishing them for non-compliance, or in order to show allegiance with the Government, were not good reasons to terminate employment. 

“I would advise employers in the current environment to tread very carefully.”

Her comments followed an urgent appeal last Friday by MSD Deputy Chief Executive Viv Rickard for staff to take on frontline roles as Omicron shortages bite.

In an internal email, he appealed for any staff with experience in Wage Support and Leave Subsidy payments to come forward and help fill the gap, and offered extra training for those unfamiliar or out of practice with the work. 

A number of Work and Income offices have had to close in recent weeks as Omicron related staff shortages bite, and WINZ is struggling to maintain service levels, as staff work 8am – 8pm, seven days a week.

Mr Rickard’s call for extra help made clear the pressure on systems, and the impact it was having on service delivery.

“At the moment, some people who need welfare assistance are waiting longer than they should to hear back from us. It’s not because we’re not doing our best – I know you guys are working your butts off.”

Ms Eden said Justice Francis Cooke’s High Court ruling striking down government mandates for Police and Defence Force staff was a reminder to all employers that Omicron was creating a very changeable situation. 

Justice Cooke acknowledged in his ruling that the “threat exists for both vaccinated and unvaccinated staff”.

He cited expert evidence given before the court, that “mandatory vaccination does not assist in preventing workers … from contracting COVID-19, or transmitting it to others.”

She said Justice Cooke’s ruling highlighted the risks of applying a permanent solution to a temporary problem.

“He was making the point that the situation is changeable and temporary. 

“But to terminate someone’s employment is permanent. It’s final, and unless they take action there’s no going back from that.”

And she highlighted the Public Service Commission’s “very sensible” advice for the public sector to pause further terminations and look closely at risk assessments and vaccination policy.

“It’s a good reminder that health and safety assessments need to be up-to-date, and that’s what the Public Service Commission has said.

“Just make sure you’re working with current data because this is a changeable situation.”

She said employers needed to keep in mind the Government’s statements that mandates will likely be wound back once the Omicron wave has peaked.

“It’s a signal to say that when Omicron is through we won’t need mandates anymore…they were only ever intended to be temporary, they weren’t permanent actions.”

Other organisations, Fonterra for instance, were showing flexibility in allowing the use of RAT tests so unvaccinated staff could continue to work.

“That’s an example of an organisation that has moved with the environment.”

By NZ Media Alliance.