Good faith consultation for COVID-19 Vaccination mandates

When it comes to an employer’s good faith obligations, it is all about the journey, not just the destination. The importance of good faith consultation is particularly important with respect to the introduction of vaccination mandates, as was demonstrated in the case of WXN v Auckland International Airport Limited (AIAL).[1]

Background to WXN v Auckland International Airport Limited

WXN was a senior mechanical technician, with over 15 years employment with AIAL. WXN’s role fell within the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order) which required that certain work could only be legally carried out by a vaccinated worker.

WXN declined to be vaccinated due to health concerns. WXN was unable to obtain a medical exemption so instead proposed a modification to his role that would result in him not being covered by the scope of the Vaccinations Order. AIAL considered it was required to comply strictly with the Vaccinations Order. WXN’s proposal was declined by AIAL and he was dismissed.

WXN made a claim for urgent interim reinstatement, not to return to the workplace, but to remain as an employee on leave, to allow for more time to discuss the issues in good faith with AIAL and to preserve the status quo until his substantive employment relationship problem could be fully investigated.[2]

The core issue was not whether WXN should be vaccinated, but whether WXN was covered by the Vaccinations Order, and whether AIAL acted as a fair and reasonable employer could in all the circumstances. Central to that decision was whether AIAL discharged its obligations of good faith in its process of consulting regarding mandatory vaccination.

The key procedural issues were as follows:

Was there adequate consideration of WXN’s proposal?

WXN’s proposal was rejected by AIAL due to concerns about his inability to be on-call and risk of fatigue due to other employees needing to fill the on-call roster. However, these reasons for rejection were not expressed to WXN, nor was there any direct discussion with WXN or WXN’s colleagues about his proposal. Additionally, AIAL failed to demonstrate consideration of WXN’s suggestion that it utilise an external contractor as a solution to their concerns.

The Court found that there was an arguable case that the steps taken by AIAL were not those which could be expected of a fair and reasonable employer.

Was there reasonable accommodation for WXN’s medical concerns?

WXN feared the vaccine would cause a flare in his medical condition and potentially affect his mobility. WXN referred these concerns to AIAL on multiple occasions. In response WXN was referred to advice on the Ministry of Health’s website. There was no evidence that AIAL reconsidered WXN’s proposal with respect to his medical condition. The Court held it was arguable that a fair and reasonable employee could have been expected to do so in light of their good faith obligations. It was also arguable that the existence of WXN’s medical concern imposed an obligation on AIAL to consider reasonable accommodation in respect of WXN’s work duties.

Was there adequate engagement and consultation with WXN?

WXN wanted more time to discuss and consider various issues of concern with AIAL. He did not receive adequate responses to his queries and concerns and was confused as to why his job was at risk. WXN expressed he was prepared to use leave entitlements to ensure there was an opportunity to explore alternative options. The Court found that a fair and reasonable employer could have had more constructive engagement with WXN to ensure he understood the reasons for dismissal, prior to being dismissed.

What is the scope of good faith?

Judge Corkill of the Employment Court described good faith as “a developing concept. Its scope is informed by particular circumstances. The Employment Relations Act focuses on maintaining and preserving employment relationships, rather than terminating them. It is arguable that in the circumstances such as the COVID-19 context, where a “no jab, no job” outcome is under consideration, there is an active obligation on the employer to constructively consider and consult on alternatives where there is an objectively justifiable reason not to be vaccinated.”[3]

Ultimately, the Court found that in light of the process undertaken by AIAL with respect to WXN, there was an arguable case that the steps taken by AIAL were not those a fair and reasonable employer could have taken. The Court ordered interim reinstatement.

Lessons for employers

Although this case is an interim reinstatement decision only, pending a hearing on the full claim, the judgment is an important reminder to employers of the need to genuinely consider employee feedback in consultation, including discussing and responding to employee concerns. Further, it highlights the importance of actively considering and consulting on alternatives to the potential end of employment, in circumstances where an employee elects not to be vaccinated, despite their role being within the scope of a COVID-19 Vaccinations Order.

If you have any questions, our specialist employment team at DTI Lawyers is here to assist. You are welcome to call us on 07 282 0174 or email us directly.