Employee challenged dismissal, bullying, and discrimination. Company won on every single count
A Fonterra tanker driver who refused both COVID-19 vaccination and rapid testing has lost his case, with the court backing the company's health and safety approach.
Carl Berryman drove milk tankers for Fonterra for five years before his employment ended in April 2022. His refusal to comply with the company's pandemic safety measures led to a legal battle that concluded on December 12, 2025, when the Employment Court dismissed every claim he brought against his former employer.
Berryman challenged his dismissal on three fronts: unjustified termination, workplace bullying, and discrimination. Judge M S King ruled against him on all counts, delivering a decision that offers HR teams a clear roadmap for navigating workplace health and safety policies.
The dispute began in late 2021 when Fonterra, like many large employers, grappled with how to keep its 12,000 New Zealand workers safe as COVID-19 spread through communities. As an essential service in the food supply chain, the company had operated throughout lockdowns and needed a sustainable approach to managing ongoing risk.
Fonterra developed its own risk analysis rather than adopting the government's generic workplace assessment tool. The company examined 61 different role types across its operations before consolidating them into seven categories for assessment, consulting with unions, health and safety representatives, and management throughout the process.
Berryman's legal team argued this was wrong. They said the prescribed government tool would not have required vaccination for a role that involved substantial time alone in a truck. The court disagreed. The regulations explicitly gave employers a choice, and Fonterra's reasoning made sense. While Berryman spent hours alone driving, he also attended morning meetings with about 20 colleagues, used shared facilities, interacted with farmers and contractors, and shared trucks across shifts.
When Fonterra proposed mandatory vaccination in December 2021, it opened a consultation process that drew more than 2,000 responses. Berryman submitted detailed feedback arguing the vaccine was "experimental and extremely dangerous." After reviewing all feedback, Fonterra made changes including pushing back the implementation date from March to April, clarifying the medical exemption process, and committing to regular policy reviews.
By March 2022, the landscape had shifted. Rapid antigen tests had become widely available, and Fonterra announced on March 9 that unvaccinated workers could stay employed if they committed to daily testing on workdays when they would have in-person contact. Berryman declined both vaccination and testing. He argued the nasal swabs contained ethylene oxide, a toxic substance, but the court heard expert evidence confirming no credible science supported his concerns.
Fonterra terminated his employment on April 1, 2022, offering to pay his notice period and leaving the door open if he changed his mind about vaccination or testing.
The court then addressed whether Schedule 3A of the Employment Relations Act applied. This now-repealed provision set out specific rules for terminating employees who failed to meet vaccination requirements. The court said no. Because Fonterra gave Berryman a reasonable alternative in daily testing, his dismissal fell under the standard unjustified dismissal test in section 103A, which asks whether a fair and reasonable employer could have acted the same way in all the circumstances.
Judge King found that Berryman's employment agreement required him to comply with health and safety policies, and nothing in that clause required his consent before Fonterra could implement new safety measures. In the context of a global pandemic, with government and scientific guidance supporting both vaccination and testing as effective controls, requiring one or the other was reasonable.
On the workplace bullying claim, Berryman complained that colleagues sent him messages calling him a "cry baby" and that his manager called out his mask wearing in front of others. Fonterra took an informal approach, which Berryman initially supported. The depot manager addressed the issues with the individuals involved, and Fonterra invited Berryman to raise further concerns. When he later complained again but wouldn't provide specifics, the court found there was little the company could reasonably do.
The discrimination claim went through an unusual evolution. Berryman initially argued Fonterra discriminated against him by treating him as though he carried disease. His legal team withdrew this after the court pointed to a 2024 Court of Appeal decision establishing that vaccination status isn't a disability. The claim then shifted to argue that sex discrimination provisions could be read broadly to protect any bodily function. The court called this interpretation untenable.
For HR professionals, the decision confirms that thorough process matters more than perfect foresight. Fonterra conducted a genuine risk assessment tailored to its workplace, consulted meaningfully with employees, remained open to feedback, reviewed its policies as circumstances evolved, and gave workers reasonable alternatives. Courts will assess those choices based on what was known and reasonable at the time, not with the benefit of hindsight.
