Employment consultant who skipped her booster was moved to unpaid leave, then dismissed
An employer has been ordered to pay more than $8,000 to a former employee after stopping her pay while it weighed her dismissal over a COVID-19 booster refusal. The Employment Relations Authority (ERA) still found the dismissal itself was justified.
The employee worked as an employment consultant in the company's Nelson office from 2021, helping job seekers referred by the Ministry of Social Development and ACC find work.
In October 2021, the company told staff it expected all employees to be vaccinated under the COVID-19 Public Health Response (Vaccinations) Order 2021. The employee received two doses that year. She then decided not to get the booster due on 4 April 2022 and did not tell her employer.
The employer, which conceded it had no system for monitoring staff vaccination deadlines, found out in May 2022. In a letter dated 2 June, its national manager barred the employee from meeting clients, directed her to work from home and set a vaccination deadline of 9 June.
After the employee's lawyer raised a personal grievance, the manager wrote on 10 June that "there are no alternative roles for an unboosted individual" and deemed her on leave without pay.
A lawyer-led meeting in July, which the ERA described as "fractious, discursive and inconclusive," was followed by her dismissal on 19 July 2022.
The employer cited three grounds: serious misconduct for breaching its vaccine policy, frustration of contract, and her failure to disclose her vaccination status.
Mandate applied to role
The ERA found that "the vaccine mandate was appropriate at the time and in the circumstances covered the role under scrutiny."
But it also found that the employer fell short of Schedule 3A of the Employment Relations Act 2000, which requires employers to ensure "all other reasonable alternatives that would not lead to termination" are exhausted before giving notice.
The ERA said the manager "rigidly ruled out any exploration of flexible alternatives," including working from home or taking extended leave.
However, it was not convinced the employee's role could be done from home without significantly reducing its scope.
"The full range of duties and responsibilities could not be met if the role was home-based," the ERA said.
It added that further engagement on working from home "would more likely than not, have led to the same conclusion."
It concluded that the employer "did not, in all the contextual circumstances, act in an unjustified manner."
The ERA declined to rule on frustration of contract, calling it "an unnecessary and confusing ground to advance."
Suspension unjustified
The ERA ruled differently on the unpaid leave. In the dismissal letter, the manager had said it was not a suspension and that "[the employer] was not going to be paying for nothing in return."
The ERA rejected that argument.
"[The employee] did not refuse to perform work - she was directed to work from home," it said.
It found that stopping her pay was "an unjustified action." It also found that it breached a clause in her employment agreement entitling her to comment on any proposed suspension and whether it should be paid.
Non-disclosure 'potential serious misconduct'
The ERA found the employee understood her obligation to tell her employer she would not take the booster. It said her silence "had potential to destroy the trust and confidence [the employer] was entitled to place in [the employee]."
It said it was "not persuaded [the employee] adopted a deliberately obstructive stance" and accepted she held genuine concerns about the booster. Even so, it reduced her compensation by 10% for contributing to the situation.
"Perhaps some more open dialogue with [the employer] may have led to a different result," the ERA said.
The employer was ordered to pay the employee $3,600 in compensation and $4,615.38 in lost wages. Costs were reserved.
