Was there a breach of contract when the vaccination policy was introduced? ERA decides
A chef employed from May 2019 until October 2021 raised concerns about a proposed COVID-19 vaccination policy and issued a section 83 notice under the Health and Safety at Work Act, refusing to work until perceived risks were mitigated.
The worker wanted testing carried out on work surfaces to establish whether COVID-19 was present in the workplace, but despite discussion and reassurance from the employer, she did not return to work.
The employer commenced a disciplinary process concerning the worker's refusal to return to work and determined she had abandoned her employment, deeming her to have resigned effective October 2021.
The worker lodged a statement of problem nearly three years later, claiming she was employed until November 2021 and that the employer breached health and safety obligations by introducing a vaccination policy requiring her to be vaccinated against COVID-19.
Employment relationship problem
The employment relationship problem articulated in the statement of the problem had two parts.
First, a claim that the worker was employed until November 2021, not October 2021 as the employer determined. Second, a claim that the employer breached the obligations it owed to the worker to protect her health and safety, with the breaches arising from the introduction of a vaccination policy requiring the worker to be vaccinated against COVID-19.
For the first limb, the employment relationship problem could only be investigated by the Authority as a personal grievance for unjustified dismissal.
For the second limb, the worker said the obligations imposed on the employer that had been breached included an obligation to act justifiably with an unjustified action causing disadvantage personal grievance, contractual obligations arising as express or implied terms of her employment agreement, obligations under the Health and Safety at Work Act, and the duty to act in good faith with a basis to claim damages for this breach.
The employer lodged a statement in reply saying the Authority did not have jurisdiction to investigate the worker's employment relationship problem.
The employer argued that the worker's personal grievances that informed the problem were not raised in time, there was no basis for the alleged breach of contract claims, the Authority did not have jurisdiction to consider breaches of the Health and Safety at Work Act, and the Authority could not award damages for a breach of the duty of good faith.
Timeline of events
In September 2021, the employer undertook a health and safety assessment of the impact of COVID-19 on its workplace.
Subsequently, it began consultation with its employees over the possible introduction of a vaccination policy requiring employees to be vaccinated against COVID-19.
On 12 October 2021, the worker wrote to the employer raising concerns about the proposed vaccination policy.
In addition, the worker gave notice under section 83 of the Health and Safety at Work Act that she refused to work until the risks she perceived to be present in the workplace were mitigated and remedied.
The employer engaged with the worker over the section 83 notice and established that the worker was concerned about the presence of COVID-19 in the workplace.
The worker wanted testing carried out on the work surfaces to establish whether COVID-19 was present in the workplace.
Despite further discussion and reassurance provided by the employer regarding the possible presence of COVID-19 in the workplace, the worker did not return to work.
Having exhausted the avenues of engagement with the worker over the section 83 notice, the employer commenced a disciplinary process concerning the worker's refusal to return to work.
As a conclusion from this process, the employer determined that the worker had abandoned her employment from 19 October 2021 and was therefore deemed to have resigned, effective 19 October 2021.
Communications regarding dismissal and employment status
As far as the ERA could ascertain from the documents lodged with the statement of problem, there was one possibility for a communication that might have raised a personal grievance for unjustified dismissal.
This was an email the worker sent to the employer's lawyer in January 2022. In this email, the worker said that she had not received notice of termination and therefore she was still employed; she was therefore entitled to be paid her usual wages or salary, and the employer had not complied with the section 83 notice.
In response to this email, the employer provided the worker's representative with a copy of its decision regarding her resignation dated November 2021. The employer stated that, as she had resigned from 19 October 2021, it had no ongoing obligations to her in terms of wages or salary or health and safety.
There did not appear to be any further correspondence or communication by the worker or her representative on the issues raised and addressed in the correspondence.
Assessing the exchange identified above, the ERA did not consider the worker's email to raise a personal grievance for unjustified dismissal. Her email did not question the employer's dismissal of her; rather, she was saying she had not been dismissed because she had not received any notification.
Then, when the employer explained that she had been treated as having resigned, she did not respond with any objection.
Three-year prohibition on commencing action
The worker said, through her representative, that she raised her personal grievance for unjustified action causing disadvantage to her employment in two pieces of correspondence: an email dated August 2025 and the section 83 notice.
The problem that arose was that on the worker's best-case scenario, she raised her personal grievance on 12 October 2021, the date of the section 83 notice. The worker's statement of problem was then lodged on 14 October 2024.
This meant that if the worker did raise her grievance for unjustified action on 12 October 2021 and this was within 90 days of the events that gave rise to her grievance, she was subsequently outside of the three-year time frame for commencing an action in the Authority based on this grievance, as that was done in October 2024.
Ultimately, the ERA could not determine the 90-day issue for the personal grievance of unjustified action causing disadvantage, purportedly raised in October 2021, as the action could not be commenced. The Authority did not have jurisdiction to consider this action.
Breach of contract claim analysis
The worker's breach of contract claim was based on the employer breaching actual or implied terms of her employment agreement by introducing a vaccination policy requiring her to be vaccinated against COVID-19 to continue working.
However, it was not clear from the statement of the problem what terms of her employment agreement the worker claimed had been breached. The ERA requested clarification on this point, but the worker, through her representatives, failed to set out the terms of her employment agreement, actual or implied, that she said the employer breached.
Notwithstanding this failure, there was a bigger issue for the worker's breach of contract claim. Put simply, the action giving rise to the alleged breach by the employer did not occur for the worker, as she resigned before the employer implemented a vaccination policy.
There could be no breach of contract for the worker based on the introduction of a vaccination policy by the employer as the worker was not an employee when the policy was implemented.
The ERA noted that this conclusion also held for the worker's alleged breaches of the Health and Safety Act and the alleged breach of the duty of good faith. Both sets of breaches were also based on the implementation of a vaccination policy requiring employees to be vaccinated against COVID-19.
The employer did not introduce a vaccination policy prior to the worker's resignation, so there was no obligation on her to become vaccinated against COVID-19 to continue to work for the employer.
Jurisdictional limitations on claims
For completeness, the ERA recorded that the Authority did not have jurisdiction to investigate problems concerning breaches of the Health and Safety at Work Act, acknowledging that the Authority did have jurisdiction to consider unjustified disadvantage grievances and contractual claims based on the implied duty to provide a safe workplace.
The Authority also noted that there was no ability for the Authority to award damages for the breach of good faith between an employer and an employee, as such breaches gave rise to penalties.
The worker had not sought a penalty; rather, she sought damages. So even if there was a basis for the Authority to find that the employer did breach the duty of good faith, this would be futile as a penalty had not been sought and damages were not available.
In the worker's view, there was no communication identifying that she disputed the employer's decision that she had resigned effective 19 October 2021. In fact, her silence once this was clarified suggested she accepted the notification of this.
Summary of ERA's findings
The ERA found that the worker did not raise a personal grievance for unjustified dismissal and the Authority did not have jurisdiction to investigate the employment relationship problem based on the termination of her employment as at 19 October 2021.
The Authority did not have jurisdiction to investigate an employment relationship problem based on unjustified action causing disadvantage as this was not commenced within three years of a relevant personal grievance being raised, if it was in fact raised.
The employer did not introduce a vaccination policy prior to the worker's resignation, so there was no obligation on her to become vaccinated against COVID-19 to continue to work for the employer. This meant there was no basis for an alleged breach of contract, either actual terms or implied.
This also applied in respect of the allegations of breach of the Health and Safety at Work Act and breach of good faith.
The Authority did not have jurisdiction to consider alleged breaches of the Health and Safety at Work Act. The ERA could not award damages for a breach of the duty of good faith, and there was no claim for a penalty for breach of good faith.
Therefore, there was no basis to investigate the employment relationship problem concerning an alleged breach of good faith.
