The Realistic Future of Vaccines in the Workplace

I’ve always provided an impartial view of the law, even where it’s not popular.

I don’t have an agenda, other than promoting the rights of employees. The law is the law.

I write this with a heavy heart: however, it is of vital importance that we consider the future of vaccinations in employment law.

I must provide the confronting reality, because no one else is.

The Vaccination Order

The vaccination order was published at 11.59pm on Friday 22 October 2021. It provides very little ‘wiggle room’ for challenge in the employment sphere. I consider there to be three potential avenues to challenge.

Firstly, where the employee is not an “affected person” who conducts “certain work”, as defined by the Vaccination Order (see blog post here).

Secondly, if the employer does not recognise the employee’s medical exemption from a suitably qualified health practitioner, which supports that it would be ‘inappropriate’ for that employee to be vaccinated (see blog post here).

Thirdly, if the employer ought to have essentially restructured that employee’s role, to allow them to continue in employment without breaching the Vaccination Order. The strength of this claim would depend on the feasibility of removing the tasks and duties which put the role into the ambit of the Vaccination Order.

Vaccination Policies

Vaccination policies will be open to challenge, especially where the employer has not conducted a fair and reasonable health and safety risk assessment on a role-by-role basis. Current case law relating to the Hepatitis B vaccine suggests that mandatory vaccination is not a reasonably practicable step: however, we are in unchartered territory.

Any challenge to a policy will likely need considerable scientific evidence relating to health and safety to mount a successful challenge. Unfortunately, most of us don’t have those resources.

Redundancy Compensation

There is still an unresolved issue about whether redundancy compensation is payable, for those employees who have redundancy compensation available in their employment agreements. Very few employees would be in this category: however, there is a six-year claim period for this.

Litigation

Informal resolution

If your employer accepts your challenge, and reinstates you to the workplace voluntarily: it is merely an exercise of buying time, until the vaccination certificates become law.

While the vaccination certificates affects customer-facing employees, as a non-employee, it will impact your ability to participate in society. We also need to be acutely aware that this government may consider further changes and amendments in the vaccination landscape.

Personal grievance

If your employer does not accept your challenge, you will have 90-days to raise a personal grievance: however, the employment jurisdiction is not lucrative and it is not guaranteed.

Remedies for a personal grievance typically include lost wages (usually three months), compensation for hurt and humiliation (average $15,000 tax free), and contribution towards legal fees ($4,500 for a one day investigation meeting, or $8,000 for a two day investigation meeting).

The best remedy would be to be reinstated on an interim basis: however, all attempts to date have failed. You could also try an interim injunction preventing your employer from terminating your employment: however, all attempts to date have failed.

You will have to be prepared for a very litigious challenge.

… and any challenge may be a matter of simply buying time until vaccination certificates or the next bombshell announcement …

Legal costs

The average cost to bring a claim to the Employment Relations Authority is $15,000. It is likely that any matter will need to progress to the Employment Court: significantly increasing costs for yourself.

There are options available for low-cost or “No Win, No Fee” advocates, however, please ensure you engage someone with legal qualifications or is otherwise suitable for this type of claim. In being frank, this is a complex legal matter.

There is also the option for legal aid. There aren’t many legal aid providers, and you may be required to repay the legal aid costs.

There is then the risks of costs if you lose: while there are arguments that costs lie where they fall as these are ‘test cases’, you must be prepared that you may be ordered to pay a contribution towards your employer’s legal costs. However, if you are legally aided, you won’t be required to pay the other party’s costs if you are unsuccessful.

Legal options

I am continuing to do what I can in this space, but I am one person, with limited resources. There aren’t many of us actively promoting ourselves for this type of work. I am close to capacity for this type of work, as it is demanding and urgent, and my health is deteriorating under the stress. I’ve had my head above the parapet too long, and it hasn’t been easy.

I’ve published a lot of material on my Facebook, and on my Blog. Please use what you can, and of course, always use my advice alongside any other advice you consider suitable.

I also want to invite you all to consider contacting Te Ara Ture for any challenge. Te Ara Ture is a pro bono legal service connecting volunteer lawyers to people who need legal help.

Future Employment

The next hurdle then becomes finding future employment.

Will the 13-week stand-down period apply for WINZ income assistance? Will vaccination become a requirement for WINZ income assistance?

Will there be employment opportunities for employees who are not vaccinated? Will companies be able to realistically operate without vaccination certificates? Will these companies be refused government assistance?

Is self-employment a realistic option? Many contractors and small businesses are in similar situations, as their business depend on relationships with other companies who are requiring vaccination: IE, farmers markets, building and construction, hair and nail salons, etc etc.

My View of the Future

My view: I genuinely believe that these laws will eventually be found to be unconstitutional by the Court of Appeal or the Supreme Court. However, at that point, the benefit will only be for the legal academics, lawyers and future law students.

The vaccination mandates would have spread, people would have lost their jobs, they might have had to sell their homes, and they might have been ostracised from society. If these laws are eventually found to be unconstitutional, those ‘real’ effects cannot be undone: at least, not under any system we currently have.

Damages are very rarely available in judicial review proceedings, and it is unlikely that the outcome of any judicial review proceeding will impact a personal grievance. If the employer was acting on an order which was applicable to the employee, and was lawful at the time, the employer will likely be found to be acting fairly and reasonably.

What Next?

I’ve always sought to empower people with information. The reality is that the right to refuse medical treatment is limited, and whether that is a justified limitation will be answered in the future.

I want to empower people right now. You know the likely course of events for the future, what you do with that information is up to you: that will always be your choice.

It’s just important that you know.

Ashleigh the Advocate provides free initial advice, and if you require representation she works on an ethical “No Win, No Fee” structure: providing you with quality advice and representation with no upfront costs. Her phone number is 027 555 999 5. Alternatively, you may wish to follow her on Facebook, where she routinely post about employment law.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of Daily Telegraph New Zealand.