Confusion reigns for workers fired from their jobs because of vaccine mandates, while two government agencies that shed dozens of staff are reviewing their Covid guidance and vaccination policies.
Prime Minister Jacinda Ardern announced this week that vaccine mandates would no longer be required in education, police and Defence workforces and businesses using vaccine passes from April 4. They would still be required in health and aged care, Corrections and border workforces.
Public Service Commissioner Peter Hughes said the public sector was in a good position because of high vaccination rates and mandates for some agencies.
But he added potentially rehiring workers let go because of vaccine mandates was “a matter for each agency chief executive to consider”.
The Ministry of Social Development (MSD) said an assessment of its Covid protocols and guidance, including its vaccination policy, was under way in light of the Government’s announcement.
Oranga Tamariki also said its vaccination policy was currently under review and would consider the impending removal of some mandates.
Employment lawyer Jordan Boyle, from Dyhrberg Drayton, said people who lost their jobs for refusing a vaccine did not have any legal recourse to get their jobs back with many mandates soon to be removed.
“As soon as the employment relationship is terminated, any obligation that the employer has to the employee doesn’t exist,” Boyle said.
However, he explained, it was different for those still working out notice periods.
“There are still good faith obligations between the parties and obviously any substantive justification for the dismissal no longer exists in theory, once the mandates are no longer applicable.”
Boyle said there could be an issue for workplaces where a new person had been recruited to replace a worker leaving because of vaccine mandates.
“I think an employee would have a pretty good argument that because the substantive justification is no longer there, the dismissal shouldn’t continue to take effect.”
Ardern said the Government’s rationale for keeping mandates in certain sectors was because they were either staff working with the most vulnerable people or worked in high-risk environments where spread would be rapid or exposure to new variants was high.
“Mandates were undoubtedly required to get 95 per cent of the eligible population vaccinated, to achieve the near elimination of Delta over summer,” she said.
Ardern said although the mandates would be dropped next month, they were still needed in some circumstances – and it’s up to employers to decide.
The Ministry of Business, Innovation and Employment (MBIE) is set to update advice for businesses in the face of mandates and legal challenges – with some already making their own adjustments.
Workers in some sectors are covered by the Government’s vaccination mandates, and other businesses could conduct a risk assessment to implement their own vaccine requirements.
Boyle said employers with internal vaccination mandates should continually review their policies based on the latest Covid-19 data.
MSD introduced its Covid-19 vaccination policy in mid-December and put in place a vaccine mandate for staff on January 10.
The Herald reported earlier in the month that the agency had begun sacking its up 220 unvaccinated workers – despite advice from the Public Service Commission to pause such terminations given the recent High Court ruling that vaccine mandates for the police and defence force were unlawful.
MSD’s organisational assurance and communication deputy chief executive Melissa Gill said when there was a change or update in the Government’s Covid-19 settings, it looked at all its Covid protocols and guidance, including the vaccination policy.
“It’s important to note that the Government’s decisions relate to Vaccination Orders under the Covid-19 Public Health Response Act. Our policy has a different legislative basis, and is based on a health and safety risk assessment under the Health and Safety at Work Act.”
Gill had earlier told the Herald that final decisions would be made around the employment of the 220 unvaccinated staff – but not all would result in termination.
Oranga Tamariki also has an internal policy
– separate from the Government mandate – that all staff are vaccinated by March 1.
Deputy lead for Covid co-ordination and support Bill Searle said the agency’s risk assessment and vaccination policy was under review.
“The Government’s decision to remove some mandates will be considered as part of that review. Implications for kaimahi in employment processes as a result of a mandate will be considered on a case-by-case basis.”
The Herald reported this month the children’s ministry had fired 19 frontline staff who were covered by the Government mandate that required health and education workers to get two doses of the vaccine by January 1.
Searle said at the time another five staff had resigned and one had retired while 70 workers had been moved into alternative roles that did not involve interacting with other people.
Covid-19 Response Minister and Education Minister Chris Hipkins told AM schools may have special circumstances that might warrant a vaccine requirement – such as staff members dealing with immunocompromised children.
“Ultimately, schools will need to make those decisions and they need to get good legal advice as they’re making any such decisions.”
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