Unvaccinated coach awarded $15000 for unjustifiable dismissal

Why did ERA find employer at fault?

Unvaccinated coach awarded $15000 for unjustifiable dismissal

A golf club in New Zealand has been ordered to pay $15,000 to a former coach who successfully appealed his dismissal in the Employment Relations Authority (ERA).

Golf coach Benjamin Harwood was terminated by his employer, Whangamatā Golf Club, in December 2021 after he refused to comply with the company's vaccination policy.

The policy was implemented amid the risks brought about by the COVID-19 variant in New Zealand. It required employees and contractors of the golf club to present a vaccine certificate no later than December 25.

Employment with the club would end on December 26 if proof of vaccination wasn't provided, if the person involved could be deployed, or if a vaccine exemption could not be obtained, the ERA heard.

Harwood, however, wrote to club general manager Richard White on November 25 pointing out that his employment agreement did not require him to undergo a medical procedure. He also noted that the vaccination order did not require people in his role to get the jabs, while further showing his concerns against the vaccine.

On the same day, however, Harwood was told that he needed to have his first dose by December 3 or else he could not perform his usual duties and responsibilities and would receive four weeks' notice of dismissal that would only be revoked if got the jab or exemption.

Dismissal over policy

With Harwood remaining unvaccinated, White wrote the golf coach a notice of dismissal effective December 31, citing the company's vaccine policy.

Harwood argued in court that his dismissal was unjustified because the club's policy was "unreasonable and unfair and it failed to fairly consider alternatives to dismissal." He further claimed that prior to his dismissal, the club "failed to keep him safe at work."

The club, however, defended that it was went through a "fair consultation process" on the vaccine policy. They were also firm on implementing it fairly and engaging with Harwood regarding his compliance.

In October, 2021, the New Zealand government announced a wide-ranging COVID-19 vaccine mandate, meaning around 40% of the workforce would be required to have the jab.

Unjustified dismissal

The ERA sided with Harwood on the matter. While ERA member Marija Urlich acknowledged that the club met its obligations with Harwood, it pointed out an "incorrect approach" by the club.

"The flaw in the club's approach is that it collapsed the specified date notice into the dismissal notice. This was an incorrect approach because, having satisfied itself Mr Harwood could not fulfil the vaccination requirement by the specified date, the statutory scheme required it to then turn its mind to exhausting all possible alternatives to dismissal before giving notice of termination," Urlich said on the decision.

"If I am wrong and the specified date notice and reasonable alternatives to dismissal consideration could be fulfilled concurrently, then on the evidence before the Authority, the Club is unable to satisfy me it has met that high threshold."

The club's failures rendered Harwood's dismissal "unjustified," according to the ERA, because the club failed to demonstrate that it stepped through the statutory requirements.

Humiliation pay

The ERA ordered the golf club to pay Harwood two months wages of less earning during January 1 and February 28.

It also ordered the employer to pay $15,000 for the humiliation that Harwood suffered, agreeing that the dismissal had an "extremely emotional impact" on the golf coach.

The coach, who grew up in Whangamatā, said his dismissal was humiliating because it had a "destructive" effect on his relationships in the local and golf community.

"I accept the circumstances of his personal grievance has had a profound and negative impact on Mr Harwood. He is entitled to an award to compensate the humiliation, loss of dignity and injury to feelings consequent to such of $15,000.00," the ERA ruled.

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