Employment Relations Authority declines application for interim reinstatement by suspended unvaccinated employees
The Employment Relations Authority has recently dismissed an application for interim reinstatement by two employees prevented from attending work unless they were vaccinated.
The Employment Relations Authority (Authority) in IOX v QEB considered whether two evening duty managers at tertiary student accommodation should be reinstated after they were suspended from work due to being unvaccinated against COVID-19.
The employer commenced a health and safety risk assessment in November 2021 which resulted in a policy requiring, amongst other things, all employees to be fully vaccinated against Covid-19 (Vaccination Policy). The two employees responded that they had chosen not to be vaccinated for various reasons, and that the Vaccination Policy was not appropriate and should not be applied. The employer advised it would discuss the matters further with the two employees in January 2022.
Then, on 23 January 2022, New Zealand entered the red setting of the COVID-19 Protection Framework. The employer understood this to mean its employees would only be able to carry out work on tertiary education premises if they were fully vaccinated, and it believed its premises were tertiary education premises. It advised all employees that they would need to be vaccinated to attend work from 24 January 2022.
The two employees understood this to mean they were suspended without pay, and claimed that that this was unjustified. They lodged claims in the Authority seeking various orders.
The employer nonetheless advised the employees that they were unable to attend work and were on unpaid leave. It suggested a meeting to discuss options, including alternative work arrangements that might be available, or the possible termination of their employment if alternative arrangements were not identified.
The employees lodged various claims in the Authority, and the substantive issues on the case are yet to be heard. This decision considered the employees’ application for interim orders. That means, the employees were seeking orders to be in place while the parties await the substantive hearing. The orders sought were;
- an order for interim reinstatement returning the employees to full time work and full pay while they await the outcome of a hearing; and
- an order for an interim injunction preventing the employer from proceeding with any process in relation to the employees’ unvaccinated status.
The test for an interim order involves determining;
- Whether there is a serious question to be tried in respect of the underlying claims and relief sought, that forms the basis of the interim orders;
- Where the balance of convenience lies pending a substantive investigation and a final determination of the claims; and
- Where the overall justice of the case lies from now until the completion of the substantive investigation and issuing of a final determination.
The Authority’s investigation
The Authority had to determine whether the employer had acted justifiably when: applying the red setting of the Protection Framework and requiring the employees be vaccinated to attend work from 24 January 2022; formulating and implementing the Vaccination Policy; and deciding the employees should consult over alternative roles and possible dismissal.
It was not clear whether the employer decided its employees needed to be vaccinated based on the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccination Order), or the COVID-19 Public Health Response (Protection Framework) Order 2021 (Protection Framework Order).
Clause 7 of the Vaccination Order mandated vaccination for workers who carry out work for a tertiary education provider on tertiary education premises. Alternatively, clause 28 of the Protection Framework Order mandated that a person who is not COVID-19 Vaccination Certificate (CVC) compliant must not enter the premises of a regulated business (the tertiary institution).
As it was not clear which of these informed the employer’s decision at the time, and the legal analysis of the applicable provision was arguable, the Authority found the question of whether the employer acted as a fair and reasonable employer could act in the circumstances was at least to some extent, arguable.
On that basis, the Authority concluded there was a serious question to be tried in relation to the employer’s actions in determining the red setting of the Protection Framework meant its employees needed to be vaccinated to attend work. However, it was not strong. The Authority noted that the employer may have gotten its analysis wrong, or mixed various terms of different orders, but nonetheless it was strongly arguable the end result was right.
The Authority further determined there were potential issues arising from the employer’s consultation over the Vaccination Policy and its implementation. These issues were not significant, but were enough to show there was a serious question to be tried on the issue of the Vaccination Policy.
The Authority turned to whether the employees should be reinstated from their suspension and found the question of whether permanent reinstatement was practicable and reasonable was very weak, however did satisfy the low threshold.
The Authority further found there was a serious question to be tried in relation to an injunction preventing the employer from consulting with the employees over alternative roles and possible dismissal, although this was also weak.
The Authority then assessed where the balance of convenience lay. The relative strength of the employer’s case and weakness of the employees’ case tilted the balance of convenience in favour of the employer. The Authority noted if it did grant the orders then the employer would potentially be in breach of the Vaccination Order and/ or the Protection Framework Order. It would also likely be in breach of its health and safety obligations. Notably, the Authority stated;
“this arises irrespective of whether [the employer’s] actions in implementing the Vaccination Policy are held to be justifiable or not. And these health and safety obligations extend to [the employees’] – requiring them to be vaccinated is, on current Ministry of Health advice, the best way to protect them from contracting COVID-19 at work“.
Further, the employer would be in breach of tertiary institution requirements regarding CVC compliance which may place the tertiary institution in potential breach of the Vaccination Order and/ or the Protection Framework Order.
The Authority noted “it would be irresponsible for the Authority to order interim reinstatement of [the employees’] to their roles when the law, [the employer’s] obligations to its employees, and [tertiary institution] requirements, arguably prevent them from working in these roles”. The balance of convenience heavily weighted in favour of the employer on these points.
Overall, the balance of convenience strongly favoured the employer, and the overall justice assessment did not override that conclusion. The Authority declined the employees’ applications for interim orders.
 IOX v QEB  NZERA 77.
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This article was included in Edition 14 of our employment newsletter – Employment News which you can read here.