Vaccine mandates are to wind down: what does this mean for employers who have dismissed unvaccinated workers (and for those who lost their jobs)?

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https://www.stuff.co.nz/national/politics/300523020/covid19-nz-jacinda-ardern-says-mandates-will-wind-down-after-omicron-peak

Although the news that mandates will wind down after the Omicron peak will be a relief to many, it immediately raises questions for employers who have already dismissed employees pursuant to the mandates, or who are working through their processes now. Here are some initial thoughts as to what this might mean for employers and those affected by their decision-making:

  1. For employers making those decisions now, there is already a requirement to consider reasonable alternatives to dismissal. The newly inserted Schedule 3A of the Employment Relations Act 2000 requires that before giving a termination notice due to a mandate the employer must ensure that all other reasonable alternatives that would not lead to termination of employment have been exhausted. Just what “exhausted” means is not yet clear, but if vaccination mandates will soon no longer be with us, then the justification for the dismissal may no longer be present. And so putting in place a short-term solution (such as the employee working from home; or taking leave) will need to be considered now even more seriously than before.
  2. Presumably, the shorter the time between the dismissal decision being made and the mandate being removed, the more likely the dismissal decision is at risk for being unreasonable. So a decision now to dismiss under a mandate is more likely to be successfully challenged. But also, dismissal decisions made last year when the mandates were first in force are more likely to be “safe” (provided they were the action of a reasonable employer at the time).
  3. Having said that, the primary remedy for a personal grievance is reinstatement to the former role. Where there is dismissal due to a mandate and the mandate has been properly applied (and is current), usually that wouldn’t be possible. But employees who have raised grievances will now surely add reinstatement as a remedy. Of course they will only be entitled to any remedy if the decision was unjustified in the first place. But if it was unjustified, presumably the remedy of reinstatement is now more likely to be awarded.
  4. In these times of skills shortages, employers who have dismissed employees due to their unvaccinated status may want now to consider reaching out to see if those former employees are still available for when the mandates are gone. Will they want to come back? In some industries where loss of job has meant loss of career and livelihood, maybe. It might depend on how they were treated through the dismissal process.

I should add that health and safety duties and obligations will still apply in relation to the safe management of COVID-19, notwithstanding mandates being removed by the government. But it make sense to think that if the government no longer considers a mandate is required for any given type of role, then it will be difficult for an employer to justify one. And that will spread to justification to other roles. For instance if the government no longer has a vaccine mandate in place for a border worker, can it be justified in an office environment, or a supermarket? Any mandate policies should therefore have review dates, and should in any event be reviewed as the situation changes. And any policy currently in process needs careful consideration before implementation.

If you have any questions regarding the vaccine mandates and the government’s announcement, contact the employment team here at Gaze Burt.

Shelley Eden
Shelley Eden
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