Employee, however, was justifiably dismissed
An employee from the Ministry for Children who was terminated for being unvaccinated was awarded $5,000 as a result of his employer's "poor communication" on the jab mandates.
The Employment Relations Authority (ERA) said Oranga Tamariki's poor communication about the organisation's vaccine mandate towards former residential youth worker Andrew Fale unjustifiably put him at a disadvantage.
"Oranga Tamariki is ordered to pay Mr Fale $5,000... to compensate him for the humiliation, loss of dignity, and injury to feelings he suffered because its poor communication with him unjustifiably disadvantaged him in his employment," the ERA said in its judgment.
Mandatory vaccine policy
Fale was hired as a residential youth worker for the Oranga Tamariki from March 2018 until January 2022, where he was tasked of ensuring a safe and secure environment for young people, as well as supporting young offenders with their personal growth and rehabilitation.
When COVID-19 hit New Zealand, the government issued a widespread mandatory vaccination order for individuals who had contact with children and students in schools and early learning services.
Oranga Tamariki communicated the order in late October that that all kaimahi in youth service justice and care residences must have their first vaccine by November 15, 2021, and their second one by January 1, 2022.
Fale, however, was away from work in late October and early November 2021, and was set to return on November 16, a day after the first vaccine mandate took effect.
The ministry said it attempted to contact Fale between November 1 and 5 via phone and text message to address the impact of the vaccine mandate, attempts that the employee claimed he did not respond to because he was on sick leave.
Because he was away from work, he also did not have access to the organisation's Intranet and work emails, where there were notifications about the vaccine mandate.
Fale only made contact with his employer on November 12, three days before the jab mandate took effect, after his employer reached out to him through his Gmail account.
"He made it clear that he was unvaccinated, did not intend to be vaccinated, and that he had made an informed decision about that with the support of his whānau," the ERA heard.
He was terminated as a result of his decision, a move that he raised the authority arguing that his dismissal was procedurally and substantively unjustified. He also sought permanent reinstatement to his role.
Justifiably dismissed, unjustifiably disadvantaged
The ERA ruled that Fale's dismissal was justified, citing that the ministry's actions were what a fair and reasonable employer could have done at the time.
"Fale's dismissal was substantively justified and carried out in a procedurally fair manner," the ruling said.
The authority, however, concluded that Fale was unjustifiably disadvantaged over the ministry's "lack of adequate communication" during the time that he was away.
"Fale was disadvantaged because instead of having a couple of weeks advance warning of the Vaccinations Order and the potential effect it could have on him, he found out about this for the first time after 8pm on Friday 12 November 2021," the ERA said.
This means he had minimal time to consider his situation, according to the authority, adding that the didn't have enough time to take prior advice before their meeting.
"Oranga Tamariki should have known that Mr Fale did not have access to his work emails when he was not at work and therefore there was no point sending communications to him at his work email or addressing letters to him at work unless they were also sent to him outside of work," the ERA said.
The ministry had the resources, internal expertise, and the ability to engage external support to ensure that it communicated its policies to all staff, according to the ERA.
"The communication deficiencies identified by the Authority fell short of that requirement, thereby unjustifiably disadvantaging Mr Fale," the authority said. "The communication deficiencies caused him to form an adverse impression about the way that he was being treated by Oranga Tamariki, which caused him stress. There was no justification for the communication deficiencies that occurred."
