The law around workplace mandatory vaccinations is evolving quickly. In this FYI we look at the recent case of an unvaccinated employee at Auckland Airport being reinstated by the Employment Court and the potential implications of this decision.

On Tuesday the Employment Court overruled the Employment Relations Authority (Authority) and reinstated an employee on an interim basis who had been dismissed for declining to take the Covid-19 vaccine.

About the case

In WXN v Auckland International Airport Limited (AIAL), WXN who is a longstanding senior mechanical maintenance technician, refused to get vaccinated in line with the Covid-19 Public Health Response (Vaccinations) Order 2021 (Health Order).

He claimed that his work fell outside the scope of the Order and that he had anxiety about potential health consequences of being vaccinated, resulting from a medical condition he suffers. AIAL had given WXN notice that he had to have at least one dose of the vaccine by 31 August 2021 or face termination.

WXN then filed an unjustified disadvantage personal grievance (PG) claim in the Authority on 28 August 2021, which included claims to preserve the status quo until his PG could be heard. AIAL proceeded with issuing a notice of termination on 1 September 2021 in line with its previous communication. WXN was then dismissed on 30 September 2021, notwithstanding the fact that the Authority hearing of the application for interim relief took place on 24 September and a determination was pending.

The Authority dismissed WXN’s claim for interim reinstatement, pending the substantive hearing and found that the balance of convenience was against WXN’s application for interim reinstatement on the basis that it had potentially "serious consequences for all of Aotearoa New Zealand" should he be permitted to return to his role unvaccinated.

WXN immediately appealed to the Court. He did not seek reinstatement so that he could return to the workplace, but so that he could “remain as an employee on leave” and “have time to discuss the issues in good faith with AIAL, and/or to preserve the status quo until the Authority could fully investigate his employment relationship problem”.

The Employment Court overturned the Authority’s determination and reinstated WXN (not to the workplace, but on paid leave for two months and then unpaid leave until further order of the Authority). The Court held that aspects of WXN’s claims were weakly arguable (about whether his role was covered by the Health Order), but that some were at least arguable (such as in relation to the inadequacies of the process as the steps taken were not those of a fair and reasonable employer). See the judgment here.

Our comment

On its face, the decision may appear concerning for some employers who have taken steps to dismiss unvaccinated employees pursuant to the Health Order. Several reinstatement applications relating to vaccinations have been unsuccessful to date in the Authority. However, our view is that this case has some distinguishing factors - particularly regarding the process followed by the employer.

Furthermore, this was an interim injunction case - not a substantive hearing. The Court made the point that assessing an application for interim reinstatement has a very different threshold to what will be used to assess WXN’s substantive claim.

At para [75] Judge Corkill held that: “the challenge before the Court relates to an application for interim reinstatement; it has therefore proceeded on the basis of untested evidence. The Court’s factual findings are inevitably provisional, and do not bind the fact-finder who deals with the issues at a substantive hearing, whether that is the Authority, or the Court where a proceeding is challenged or removed.” 

Get in touch

This area is moving at pace and so we anticipate that employers and HR practitioners are keeping a close eye on the developments in this space.

Please feel free to get in touch with a member of the employment team (pictured right) to discuss the case and its impacts in more detail or otherwise any wider vaccination related queries..