Employment Court overturns vaccination decision, comments on tikanga and heightened public sector obligations
The Employment Court’s long-awaited decision of GF v Customs has found that Customs unjustifiability dismissed an unvaccinated Port worker, reversing the Employment Relation’s Authority 2021 finding.
The case has also provided interesting insight into the incorporation of tikanga in the employment relationship, and what the Court described as the “heightened obligations” of public sector employers.
GF was an Assistant Customs Officers Maritime Border (ACOM) at a South Island Port. GF did not want to be vaccinated and Customs ultimately terminated their employment. GF pursued a claim in the Employment Relations Authority, which was dismissed. GF appealed the decision to the Employment Court.
Customs terminated GF’s employment on the basis that there were health and safety reasons requiring them to be vaccinated, and that their role was also covered by the Government Vaccination Order (Order), which was passed into law the day GF was terminated.
Initially, in early 2021, Customs took steps to “educate, expect and support” its workers to be vaccinated, but did not require vaccination. In mid-February 2021, Auckland was placed in Alert Level 3. Staff were informed that Customs now expected all staff to be vaccinated, to ensure border resilience, but employees could still “opt out”.
GF did not attend Custom’s Q and A sessions and did not read most of the information Customs sent out about vaccinations. They considered it irrelevant because they had already decided not to be vaccinated. The Authority described this as GF “studiously” avoiding engagement. The Court took a different view, and found that GF felt isolated from the process, that they were upset by the messaging Customs adopted (including by lauding employees who had been vaccinated as having taken steps to protect their communities) and that Customs failed to adequately and appropriately communicate with GF.
By March 2021, Customs conducted a risk assessment and formed the view that all staff interacting with people who were arriving in New Zealand should be vaccinated. GF realised, for the first time, that their job was in jeopardy on 26 March 2021 when they read a newspaper article titled: “Unvaccinated border workers to be barred from frontline roles.” At that point GF instructed an advocate, who wrote to Customs seeking to engage in discussion and requesting information.
Meanwhile, the Prime Minister announced that front line border workers had to be vaccinated by 12 April.
GF’s advocate asked Customs repeatedly for an urgent reply. No substantive response was provided until three weeks later, at which point Customs proposed to terminate GF’s employment.
The Court criticised Customs for providing a generic letter (rather than an individualised one) to GF that did not explain why Customs formed the view that the work GF did needed to be performed by a vaccinated worker. The letter also did not provide the information sought by GF’s advocate.
The parties met on 29 April. Customs confirmed its assessment that it required GF’s role to be vaccinated, that GF was an “affected person” under the Order, and that there were no internal redeployment opportunities. As such, the next step would be to look to external redeployment options with other public sector agencies, and if there were none, Customs would consider a stand down and then termination. Customs sought feedback during the meeting about the termination, stand down and redeployment, but not on its assessment or whether GF was actually covered by the Order. GF declined to participate further in the meeting and their employment was terminated the next day.
The Court concluded GF was unjustifiably dismissed and suffered unjustifiable disadvantage. It held Customs failed to a follow a fair and reasonable process, failed to adequately engage with GF, and that its decision was predetermined. GF was awarded $25,000 in compensation and three months’ lost earnings. The Chief Judge also revisited the banding approach for compensation and adjusted these to reflect inflation. The new bands are: $0-$12,000 for band 1 (low), $12,000-$50,000 for band 2 (middle) and $50,000 upwards for band 3 (high).
GF argued Customs failed to comply with tikanga/tikanga values it had voluntarily imported into its employment relationships with staff. Te Hunga Rōia Māori (The Māori Law Society) was given leave to appear as an intervenor.
The Court accepted Te Hunga Rōia Māori’s submission that although the Employment Relations Act does not expressly incorporate tikanga/tikanga values, the statutory framework for employment relationships does not preclude their incorporation. The Court referred to the Supreme Court’s comment in the Ellis decision that tikanga has been, and will continue to be, recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant and held tikanga was relevant here, given that Customs incorporated tikanga into its employment relationship with its employees through numerous employment documents.
The Court accepted, at a minimum, Customs was obliged to acknowledge and consider tikanga/tikanga values that it itself had introduced into the employment relationship. Having gone on the front foot and incorporated tikanga into the employment relationship, it then failed to comply. Although GF was not Māori, it was not only relevant to Māori staff because tikanga was incorporated generally.
Having committed to tikanga/tikanga values in its employment relationships, the Court recommended that Customs take steps to engage pūkenga to ensure that it has in place capacity and capability to meet its obligations.
Heightened good employer requirements for the public sector
The Court also found that Customs did not meet the heightened good employer obligations imposed on it under section 73 of the Public Service Act.
The Act requires, among things, that public service employers must operate an employment policy containing provisions for the recognition of the aims and aspirations of Māori, the employment requirements of Māori and the need for greater involvement of Māori in the public service.
The Court held it was seriously arguable that the obligations imposed on public sector employers are broad, extending to requiring public service organisations to understand and act consistently with tikanga/tikanga values relevant to their role as a good (public service) employer. The Court drew a link between the obligations under the Public Sector Act and the fact that Customs had incorporated tikanga/tikanga values into the employment relations framework, and that the extent to which its commitment to tikanga has been met, is relevant to assessing whether it is has complied with its good employer obligations.
 GF v Comptroller of Customs NZEmpC 101 
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