Employer adopted an 'inflexible' policy that did not consider individual circumstances, court says
A pilot terminated for refusing to comply with COVID-19 vaccination requirements has won unjustified dismissal at the Employment Court.
The Court found that the aviation employer failed to meet its statutory obligation to explore reasonable alternatives before proceeding with dismissal, as required by the Employment Relations Act 2000.
"No fair and reasonable employer could have said it was not in a position to approve any period of [leave without pay]," the Court ruled. "[The employer's] decision to refuse to grant [the pilot] LWOP and instead move to terminate his employment was unjustified."
Pilot's career ends amid mandates
The pilot, who began flying for the aviation employer in 2005, was placed on special leave without pay (LWOP) during the early stages of the pandemic.
As travel resumed, vaccination orders came into force. From July 2021, "aircrew members" like him were required to be vaccinated to continue working.
Despite consultations, the veteran pilot declined vaccination due to medical concerns. He did not seek an official exemption, and the employer ultimately issued a letter in January 2022 terminating his employment with three months' notice.
The pilot challenged the dismissal at the Employment Relations Authority, which ruled in the employer's favour. He then appealed to the Employment Court, alleging a breach of both his employment agreement and the statutory requirement to consider alternatives before termination.
Failure to consider alternatives
While the Court found that the employer had complied with the required three-month notice period — running from January 25 to April 24, 2022 — it took issue with how the company handled the alternative options to dismissal.
The Employment Court said the employer adopted an "inflexible," company-wide policy of denying leave without pay for unvaccinated staff, without adequate consideration of individual circumstances.
"[The employer] confirmed at the hearing that due to a company-wide directive set by its resourcing team, no application for LWOP would have been granted, even if it was made," the Court said.
It further noted that the pilot had "repeatedly" raised LWOP as an alternative, both in meetings and through his lawyer, and had expressed willingness to take Novavax when it became available.
The Court emphasised that employers planning to dismiss staff have an obligation to ensure all other reasonable alternatives that would not lead to termination have been exhausted.
The employer's argument that approving LWOP would undermine the ability to dismiss under the Act was rejected.
"What is reasonable in any one situation depends on the circumstances at hand," the Court said. "This is merely one example where a LWOP arrangement was reasonable."
