WXN v Auckland International Airport Ltd

Mr X had worked for Auckland International Airport Ltd (AIAL) as a mechanical maintenance technician for more than 15 years, with 10 years in a senior position. He was a competent and well-respected employee.

AIAL appreciated the risk of COVID-19 posed by and to border workers, and commenced consultation with its employees around vaccination in February 2021. The initial COVID-19 Public Health Response (Vaccinations) Order (Order) effective 30 April 2021 covered some border workers, but not mechanical workers such as Mr X. An amendment to the Order 14 July 2021, requiring a first vaccination by the close of 30 September 2021, did however appear to bring mechanical workers such as Mr X within the Order. AIAL consulted with the union of which Mr X was a member. It agreed. AIAL also consulted with Mr X, informing him that, if he did not get a vaccination by 30 September 2021, he could not continue doing his job.

Due to a medical condition, Mr X had serious concerns that he would become an invalid if he was vaccinated with the Pfizer vaccine and felt considerable stress at the prospect.

On 6 August 2021, AIAL issued a policy contemplating termination of employment for employees subject to the Order who chose not to be vaccinated. Mr X wrote to AIAL on 12 August 2021 saying that he would not get vaccinated, but proposing that one aspect of his work be modified so that he did not go into areas accessed by international arriving passengers. AIAL considered Mr X’s proposal, but decided it was not workable.

From 17 August 2021, Auckland went into an Alert Level 4 Lockdown due to the incursion into the community of the highly transmissible Delta strain of the virus. AIAL’s intention had been that unvaccinated staff could continue working in their roles until 30 September. However, it carried out a risk assessment and concluded that the increased risk due to Delta meant that only vaccinated staff could perform work covered by the Order with effect from 23 August. Unvaccinated staff would have to stay at home. On Friday 20 August, AIAL informed all affected employees of its decision including Mr X. It referred to the proposed termination of employment of those who, after 22 August 2021, remained unvaccinated.

Mr X had been on leave and his manager contacted him on 21 August indicating that he would be suspended if not vaccinated. Mr X had not seen the 20 August email to affected staff and was shocked and upset. He felt bullied and his mental health was affected. On 24 August Mr X received from AIAL (belatedly due to his leave) a response to his 12 August proposal saying it was not workable, and a communication to all affected staff 23 August stating that if a first vaccination had not taken place by 31 August 2021, a decision to terminate would be made on 1 September 2021. Staff were given an opportunity to respond. Mr X felt confused and concerned, including because he was unsatisfied with AIAL’s 12 August response to his proposal. Mr X’s manager spoke to him on 24 August and provided further explanation. On 26 August Mr X wrote to another manager saying he wanted more information and expressing his concerns about the Pfizer vaccine. The manager responded reiterating AIAL’s position and referring Mr X to the Ministry of Health website. She explained that Mr X was not being made redundant, rather he was unable to work in his role while unvaccinated. She also responded to issues Mr X had raised under the New Zealand Bill of Rights Act 1990 (Bill of Rights) and the Human Rights Act 1993.

On 1 September 2021, AIAL gave Mr X notice of termination of his employment effective 30 September 2021, explaining that he could not lawfully work in his role and would remain on paid leave in the meantime. AIAL explained that it would reconsider its position in the event that Mr X was vaccinated in the interim.

The Employment Relations Act 2000 (Act) provides that reinstatement is a primary remedy for a personal grievance.³ Interim reinstatement can be applied for on an urgent basis pending a full consideration of the issues.⁴ In that case the Employment Relations Authority or the Court makes the interim order after considering whether the claimant has a seriously arguable case and the “balance of convenience”.⁵

Mr X had pre-emptively applied to the Authority for an interim order during his notice period. The Authority’s 7 October determination declined to grant the interim order and Mr X lodged a challenge in the Court the following day, with the hearing taking place virtually on 5 November 2021.

The Court noted that its role was not to determine the lawfulness of the Order, which was an issue for the High Court. It identified the substantive issues as being first, whether Mr X was covered by the Order, and secondly, whether the process AIAL followed was one that could have been followed by a fair and reasonable employer.

The argument around the first issue was whether Mr X was an “excluded airport person” as defined in the Order, meaning that he fell outside the definition of “affected person”⁶ which determined whether the Order applied to him. The Court carefully considered the definition of “excluded airport person” in light of the purpose of the COVID-19 Act. It also considered an interpretation argument raised by Mr X under s6 Bill of Rights Act. This being that a meaning of the phrase “excluded airport person” consistent with the right to refuse medical treatment under s11 Bill of Rights Act should be preferred. The Court found, however, that the words of the Order were “clear and precise” so that there was no basis for reading the definition of “excluded airport person” to bring Mr X within that category. Furthermore, the COVID-19 Act clearly countenanced orders being made pursuant to it which limited rights under the Bill of Rights Act, provided the Minister was satisfied the limit was reasonable and demonstrably justified as provided for under s5 of that Act. In summary, the Court found that Mr X’s interpretation argument was weak. It appeared that Mr X fell squarely within the definition of “affected person”. It followed that Mr X had not established a “seriously arguable case” on this point.

The argument around the second issue (process) focused on a number of points.

The first was whether AIAL had given sufficient consideration to Mr X’s 12 August 2021 proposal which he contended would avoid him being in areas accessed by international arriving passengers. The Court found that AIAL had not properly explained to Mr X its reasons for finding his proposal unsatisfactory, and had not properly investigated its viability, including speaking with vaccinated colleagues about their availability for certain on-call work which Mr X would no longer be able to perform. There was also the possibility raised by Mr X of external contractors being available for some on-call work, and AIAL had not considered this.

The second point was whether Mr X’s medical condition, which led to him being particularly fearful of the vaccine, gave rise to AIAL having particular obligations to consider how his employment could be accommodated.

The third point related to Mr X’s expressed desire to have further time to understand and consider the issues of concern to him, noting that he had significant leave entitlements available which could have been used to facilitate this.

A fourth point related to whether AIAL should have applied for an exemption for Mr X under clause 12A of the Order.

The question for consideration by the Court was whether, taking into account these points, AIAL had discharged its good faith obligations under the Act, in particular the obligation to be “active and constructive in establishing and maintaining a productive employment relationship in which the parties are … responsive and communicative”.⁷

The Court observed that:⁸

Good faith is a developing concept. Its scope is informed by particular circumstances. The Act focuses on maintaining and preserving employment relationships rather than terminating them. 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.

The Court found that, given the process points referred to above, it was arguable that the process AIAL had followed was not that of a fair and reasonable employer.

Having found that it was arguable there were deficits in the process, and that a proper process could have led to a different outcome, the other consideration was whether there was an arguable basis for permanent reinstatement, which means that reinstatement must be “practicable and reasonable.”⁹

The Court noted there were no performance issues, and AIAL had considered Mr X “a great employee”. There was, furthermore, no evidence that Mr X’s role was no longer available. AIAL had announced a further vaccination policy on 26 October 2021 requiring all employees be vaccinated. The policy provided, however, that AIAL would work directly with individuals who were uncertain or could not be vaccinated for medical reasons. It follows that, given the consultation provision, this policy did not preclude Mr X’s return to the workplace.

The Court concluded therefore that, overall, Mr X’s case for permanent reinstatement was arguable.

After considering a range of factors, including the scheduled Investigation Meeting in the Authority in January 2022 to hear Mr X’s substantive claims, the Court concluded that the granting of an interim reinstatement order would cause less prejudice to AIAL than the prejudice to Mr X if the interim order was not made. That is, the balance of convenience favoured Mr X’s interim reinstatement as an employee, albeit he would be unable to return physically to the workplace. As Mr X was reinstated as an employee, AIAL would need to proceed to deal with Mr X going forward in accordance with its good faith obligations.

The Court granted Mr X’s claim for interim reinstatement pending the full hearing on the merits in the Authority.

The decision highlights the need for employers to be mindful of their good faith obligations when dealing with employees who have arguably legitimate concerns about, or objections to, a vaccination mandate. It is important that employers actually engage with these employees around their particular issues, and explore solutions, rather than simply responding generically – for example, using template letters supplied by employer organisations. It is also important to have carefully considered whether, in fact, the employee concerned is “an affected person” as defined by the Order. If employers do not take care in these respects, they face a greater risk of claims under the Act for interim and permanent reinstatement as well as personal grievances seeking compensation for hurt and humiliation and lost wages, and claims for penalties for breach of the duty of good faith. Employees who cannot continue working at the workplace due to mandates can remain employed while the process is worked through, although this may be without pay, or by using leave entitlements (where the employee agrees).

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.