WXN v Auckland International Airport Ltd [2021] NZEmpC 205
WXN was a long-standing and respected employee of Auckland International Airport. His employment was terminated after he chose not to be vaccinated against Covid-19. He raised a personal grievance in the Employment Relations Authority seeing permanent reinstatement. Pending hearing of the matter, WXN applied to be temporarily reinstated in his job.
The Employment Court had to consider whether WXN’s case for permanent reinstatement order was arguable, and whether the balance of convenience favored temporary reinstatement.
The Court found that it was arguable that the Airport’s process of dismissal was inadequate. The steps the Airport have taken were not those which could be expected of a fair and reasonable employer.
WXN informed the Airport of a medical condition which he was concerned might be exacerbated if he received the vaccine. It appeared that the Airport did not properly consider the medical issue. The Court emphasised that “an employer may well have an obligation in circumstances such as the present, to at least consider, if not deploy, alternatives when an employee has a justifiable reason not to be vaccinated” and that “the existence of WXN’s disability meant the Airport had a particular obligation to consider a reasonable accommodation in respect of his work duties.”
WXN was a Maintenance Technician. Following notification of mandatory vaccination, WXN prepared a comprehensive proposal to the employer about how he could do the job without creating a risk to others. The Court held that the Airport failed to consider the proposal. Specifically, it said:
“It is arguable that in circumstances such as the COVID-19 context, where a “no jab, no job” outcome is under consideration, there is an active obligation on the employer to constructively consider and consult on alternatives where there is an objectively justifiable reason not to be vaccinated.”
WXN also argued that because the type of the work he did, he was not subject to the vaccination order. However, the Court considered that this claim was only “weakly arguable”.
In granting temporary reinstatement, the Court took into account that an interim order would cause less prejudice to the Airport than to WXN; that it was not simply about money (which the Airport argued) but that reinstatement would restore the employment relationship and thus the good faith duties; that the power imbalance would be greater if WXN were no longer an employee; and most importantly, that reinstatement is a primary remedy. In addition, the Court noted that WXN “pulled all the stops” to maintain his employment relationship, offering to use his leave entitlement to allow time to discuss his options with the Airport, while the Airport’s approach made that possibility more difficult.
In the end, the Court ordered that WXN be temporarily reinstated as an employee pending the hearing of his case in the Employment Relations Authority.
This does not necessarily mean that WXN would win the case in the Authority, only that he has an arguable case.
Employers need to be aware that despite the vaccination order, they still owe duties to their employees, and employment law continues to apply. Dismissals should be carefully considered.
For those employers who have an Employment Practices Liability policy, just a reminder that most insurance policies require the employer to seek legal advice prior to dismissing or disciplining an employee. If this condition is not met, the insurer might decline cover.
