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First Case on Mandatory Vaccination in New Zealand

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Can employers require their employees to be vaccinated, given the Delta variant of COVID-19 is now circulating in New Zealand?

The Employment Relations Authority has recently released its determination in GF v New Zealand Customs Service, upholding New Zealand Customs’ decision to dismiss a border worker who refused to get vaccinated.

This is the first employment case addressing this question.

While this case specifically dealt with mandatory vaccination for border workers, it has some important key considerations for the wider business community.

As with any dismissal decision, the ERA will assess the employer’s actions on their individual merits.  Some key actions/considerations that must be taken into account, and that helped New Zealand Customs justify the dismissal in this case, are:

  • An extensive risk assessment must be undertaken by the employer (including considering whether the risks can be appropriately minimised through the use of PPE alone).
  • Before adopting such a policy, the employer must consult widely with all affected employees on why the policy is necessary.
  • Where an employee cannot (or will not) get vaccinated, the employer must genuinely consider any explanation provided by the employee, as well as consider any other alternatives to dismissal, such as extended leave, redeployment opportunities, and so on, before deciding to dismiss.

The issue of mandatory vaccination is evolving all the time. However, employers contemplating such a policy must always be mindful of balancing their obligations of good faith, as well as that of health and safety, against their employees’ individual rights (to refuse medical treatment, and against discrimination).

Any decision to introduce mandatory vaccination must therefore be thoroughly assessed and taken very carefully.

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