Vaccine Litigation in the Employment Jurisdiction

I was the first to stand up and speak up about the impact of mandatory vaccination in the workplace. The first to take a case to the Employment Relations Authority … to the Employment Court … to the High Court.

The last I checked, 80% of vaccine-related cases were brought with my representation. This 28-year old, female, self-employed advocate … with a cognitive disability. I understand that Sue Grey is the only other published representative in this space.

I didn’t want to be the first. My family warned against it. However, there was no one else providing any form of legal advice whatsoever. I was surprised at the number of lawyers assuming medical positions, as they urged: “get vaccinated.”

I suffered scrutiny from the public and the profession. It significantly impacted my health. However, I did it for the people.

The profession saw me in the media. They knew I was out there, but no one reached out to help me.

I did it alone.

The Vaccinations Orders

On 30 April 2021, the COVID-19 Public Health Response (Vaccinations) Order 2021 (“the Vaccinations Order”) came into force: after only 48 hours notice. The purpose of the Vaccinations Order was to prevent, and limit the risk of, the outbreak or spread of COVID-19 by requiring certain work at certain places to be carried out by affected persons who are vaccinated.

The Vaccinations Order was amended on 14 July 2021, by the COVID-19 Public Health Response (Vaccinations) Amendment Order 2021: 48 hours after its notification in Gazette. The purpose is to prevent, and limit the risk of, the outbreak or spread of COVID-19 by requiring certain work to be carried out by affected persons who are vaccinated.

Note that the amended Vaccinations Order removes the “at certain places” caveat.

The core difference is that the original Vaccinations Order applied predominately to Public Service workers, whereas the second Vaccinations Order expanded to employees of private companies.

The third Vaccination Order was published on 25 October 2021, and largely applies to healthcare workers, teachers, and prison workers (see more here). The third Vaccination Order also significantly expands the circumstances available for an exemption or authorisation (see more here).

Creation of COVID-19 Orders

The Vaccinations Order was created in accordance with the COVID-19 Public Health Response Act 2020 (“Public Health Response Act”). The Public Health Response Act provides that the Minister of COVID-19 Response may make any type of COVID-19 order, “without limitation”, that requires persons to refrain from taking any specified actions that contribute or are likely to contribute to the risk of the outbreak or spread of COVID-19, or require persons to take any specified actions, or comply with any specified measures, that contribute or are likely to contribute to preventing the risk of the outbreak or spread of COVID-19.

However, before making an Order under the Public Health Response Act, there must be an epidemic notice in place, or a state of emergency or transition period in respect of COVID-19, or otherwise authorised by the Prime Minister. In addition, in considering the creation of the Order, the Minister must:

• Have had regard to advice from the Director General of Health about the risks of the outbreak or spread of COVID-19, and the nature and extent of measures (whether voluntary or enforceable) that are appropriate to address those risks.
• Be satisfied that the Order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act.
• Have consulted with the Prime Minister, the Minister of Justice, and the Minister of Health.
• Be satisfied that the Order is appropriate to achieve the purpose of the COVID-19 Public Health Response Act.

Once these conditions are met, the Minister should provide 48-hours’ notice. However, the Minister may provide less than 48-hours when required to prevent or contain the outbreak or spread of COVID-19.

The Order must then be presented to the House of Representatives as soon as is reasonably practicable.

It is my belief that these Vaccination Orders are unlawful: the COVID-19 Public Health Response Act 2020 does not specifically allow for the creation of an Order requiring medical treatment. It only allows for Orders relating to medical testing and medical examination.

In line with principles of statutory interpretation, and the interpretative provisions of the New Zealand Bill of Rights Act 1990, secondary legislation typically needs to be very express if it intends on overriding primary legislation (especially legislation with constitutional status).

The Act does state that the types of Orders are “without limitation”, however, this would then create a Henry VIII clause which is constitutionally inappropriate: as it allows unfettered power to one person without requiring the usual checks and balances through the House of Representatives.

This argument was substantially reported by the High Court. However, I do hope that this argument sees its way to the Court of Appeal and/or Supreme Court.

… This may be a hill I die on …

Jurisdictional Conflict: High Court v Employment Court

The Vaccination Order has resulted in the termination of employment for employees who are “affected person[s]”, occurring on, or about, 30 April 2021, 26 August 2021 and 30 September 2021. If an employee has been terminated as a result of their status of an “affected person” (properly interpreted), they will unlikely have grounds for a Personal Grievance for unjustified dismissal due to the lawful status of the Vaccinations Order.

This has left employment law practitioners “between a rock and a hard place.” Personally, I had been referring these employees to lawyers who were experienced in judicial review proceedings at the High Court: as it was the only means of challenging the lawfulness of the Vaccinations Order.

However, the High Court cannot provide interim relief against an Order of the Government, and it is only in extraordinary and unprecedented circumstances that the High Court could provide interim relief in relation to judicial review proceedings, prohibiting an employer from terminating an employee’s employment. I didn’t think that an urgent substantive hearing was viable.

… I was wrong: filed 22 August 2021, heard 20 September 2021, judgment 24 September 2021 …

Anyway, these lawyers were referring these employees back to employment law representatives, such as myself, because the employees ultimately sought an employment remedy: to prohibit the termination of their employment.

We knew we couldn’t get a case through the Employment Relations Authority fast enough. We had to try the Employment Court. We were desperate.

Employment Court: Employees v Attorney-General

On Friday 13 August 2021, Sue Grey (lawyer) and I met for coffee to discuss the situation. Between us, we had over 100 employees who were seeking assistance. It was beneficial to our clients that we join forces and share knowledge. We had the people, and the greatest gift we could give them was our representation.

We applied for interim/interlocutory relief in the Employment Court, by way of a section 194 application, relying on its exclusive jurisdiction of equity and good conscious. We also sought an ‘opt out’ order, raising the claim on behalf of all affected employees, against all affected employers (but brought against the Attorney-General as being representative of all employers).

It was a long shot. We were desperate.

We wanted to test the waters: could the Employment Court order an interlocutory injunction, pending full hearing at the High Court, to prevent all employers from taking action against all employees, on the basis of the Vaccinations Order?

The Vaccinations Order does not say someone cannot be employed: it provides that “[a]n affected person must not carry out certain work unless they are vaccinated.” As the Vaccinations Order does not make vaccinations mandatory, then affected employees should be allowed to remain on paid or unpaid leave: to say otherwise would open potential arguments of coercion and duress.

There were important principles at stake. Not only has the Government interfered in the employment relationship, but there are also very real concerns about the relationship between the Vaccinations Order and the New Zealand Bill of Rights Act 1990, Te Tiriti o Waitangi, the Health and Safety at Work Act 2015, and the Health and Disability Commissioner (Code of Health and Disability Services’ Rights) Regulations 1996.

At a higher level, there are concerns about the inability for a person to access justice for the purposes of protection against unemployment, seemingly contrary to the New Zealand Bill of Rights Act 1990, and New Zealand’s commitment to the United Declaration of Human Rights.

We needed to know where we stood.

Unsurprisingly, the Attorney-General applied for a strike-out order, on the basis that the Employment Court does not have the jurisdiction to hear the application. The Attorney-General argued that the High Court is the “competent Court,” and the Attorney-General was successful in its application. The Chief Judge of the Employment Court held that:

… the validity of the Order is for the High Court to consider on an application for judicial review. This Court has a judicial review function but it is limited to certain matters. Inquiring into the validity of an Order made by a Minister pursuant to another Act is not one of them.

The Employment Court, rightly, identified that the claim was a ‘wolf in sheep’s clothing’ (my words), and to allow such a claim would cut across the statutory framework: both relating to the Judicial Review Procedures Act 2016, and the path delineated by the Employment Relations Act 2000.

I had already filed judicial review proceedings at the High Court: which will be seeking to have the Vaccinations Order set aside (IE: unenforceable).

We still had to consider: how can we help these employees right now?

Silver Lining: Urgency at the Employment Relations Authority

There is a silver lining. The Chief Judge of the Employment Court provided helpful and sought-after guidance for affected employees.

[8] … The Act makes it clear that such claims are to be commenced in the Employment Relations Authority (not the Court). The Authority has the power to make interim orders where it considers it appropriate to do so, as well as compliance orders. The Act also makes provision for matters to be challenged to the Court, including where interim relief has been declined; or for matters to be removed to this Court for hearing. Where removal is declined, a party may apply to the Court for special leave to remove.

The issue was, as I encountered with GF v OO, this process is easier said than done. I filed GF v OO on 11 May 2021, and despite progressing on “urgency”, as at the date of writing, the parties have yet to receive a determination.

In response to my submissions on this point, the Chief Judge of the Employment Court provides direction:

[13] I note one final point. The applicant’s representative raised a concern about what was said to be the likelihood of delay in the Authority if proceedings were commenced in that forum. It was said that the Authority would almost certainly direct the parties to mediation, even given the urgency, and that it was highly unlikely they would get before the Authority itself until well after the date on which termination has been signalled. It was further said that a related case is still awaiting determination in the Authority, which has prompted an application for special leave to remove. The applicant submits that the timeline for disposition in the related case reinforces the strength of the application in the present case.

[14] Neither the Authority nor the Court is required to direct parties to mediation and there are circumstances in which a direction is not appropriate. Parties are entitled to seek urgency and to have consideration given to whether urgency ought to be granted, and, if so, on what terms. Parties are also entitled to seek leave to remove matters to the Court for hearing, including where the proceedings raise important legal issues or are of such urgency that it is in the public interest that they be removed immediately to the Court.

In these uncertain and unpredictable times, the messaging from the Chief Judge of the Employment Court is welcome relief: parties are entitled to seek urgency and to have consideration given to whether urgency ought to be granted. This message has been provided to the Employment Relations Authority, and it appears to have been effective.

Employment Relations Authority: WN / WXN

We went to the Employment Relations Authority: and continued to see the failures in the system.

The applicant is known as WN in the Employment Court (first instance), and WXN in the Employment Relations Authority. It appears the plaintiff will remain as WXN in the Employment Court (second instance).

Timeline of WN / WXN:

• On 28 August 2021 we filed with the Employment Relations Authority for an interim injunction, seeking to prevent the termination of WN’s employment.
• On 1 September 2021, his employer provided notice of termination. He was placed on garden leave for his notice period.
• On 1 September 2021, the Employment Relations Authority refused to hear the matter: stating it did not have the jurisdiction to order interim injunction.
• We immediately filed with the Employment Court, and on 15 September 2021, the Chief Judge of the Employment Court confirmed that, indeed, the Authority had the jurisdiction to hear and determine the matter.
• We returned to the Employment Relations Authority, where the matter was heard on 24 September 2021. The Authority indicated that it would have a decision by 30 September 2021: the day WN’s termination took effect.
• The Employment Relations Authority released its determination on 7 October 2021: at which point Auckland International Airport had terminated his employment.

It is my view that the Employment Relations Authority erred in its decision: it failed to consider WXN’s submission that he remain on leave past 30 September 2021. As an employee of 15-years, WXN had a considerable amount of annual leave owing. However, the Authority had only considered the possibility of him returning to the workplace.

This matter is being challenged at the Employment Court.

This is the similar finding of the analogous case involving Civil Aviation Authority: which submitted that the employees be reinstated to payroll only. They did not argue that the employee’s be reinstated physically to the workplace.

Why isn’t the Employment Relations Authority accurately reporting these matters?

This is a long-standing issue: the Authority is not bound to report a matter in any specific way. This was most evident in the matter involving New Zealand Customs Service: where I can personally vouch for having made a significant amount of submissions, arguing that GF was not an “affected person”, when interpreting the Vaccination Order, alongside the Border Order, and the Customs and Excise Act 2016.

Maybe we’ll get some answers after my own personal judicial review of the decision: after the original decision was written emotively and biased towards me. In the first (of four) publication, I was personally referred to 55 times, with Customs’ lawyer referenced only on the front page. Obviously, there’s more to it, but that should set the scene.

Conclusion

The future is bleak, and I believe these vaccination matters have highlighted a significant failing in the legal profession. It should have been a lawyer who brought the first judicial review. I was made out to be an example: my imperfections used as an example of the importance of having legal counsel in the High Court.

The problem is when lawyers don’t make themselves available. The employment jurisdiction is not lucrative: there is no ‘wiggle room’ for expert witnesses.

The vaccination issue is now ‘popular’ amongst the legal profession: however, the issues are not new. What is happening now, is what I tried to warn against back in April 2021.

I stuck my head above the parapet. I took the brunt of the storm. Those lawyers stood and watched. They watched as I was admitted to hospital. As I wrote about mental health. As I was harassed by members of the public. As I struggled. As I failed. As I tried.

… and when they determined it was safe to do so, they joined …

But … Here I am, again, writing endlessly about the latest Vaccination Order. Taking my learnings from the previous Vaccinations Orders, to assist the people in having conversations with their employers.

And again, I’m doing it alone.

… and then they wonder why I struggle to be a team player …

I created that path … unpaid. When they came down from their ivory tower, it was “safe” to take vaccination cases … paid. However, no one was a part of my team when I needed them.

I’ve had to create my own team.

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.