Government agency's no vaccine, no job stance for frontline worker justified: ERA

By Nikki Preston

A frontline border protection officer who was fired after refusing to get vaccinated has lost her case.

Customs NZ has been cleared of any wrongdoing and was justified in dismissing the unvaccinated worker at the end of April, the Employment Relations Authority has found.

The worker's dismissal came at the same time the Government legislative order requiring certain "frontline" border workers must be vaccinated came into play.

Following a long consultation process, Customs told the worker she needed to be vaccinated otherwise her role would be terminated. Workers were initially encouraged to be vaccinated until the new legislation was introduced, changing their position and making it mandatory.

However, the Customs worker argued not being vaccinated was not a genuine reason for getting fired and wanted her job reinstated, according to the determination.

She claimed her role had wrongly been classed as being a frontline role and, due to the terms of the conditions of the role in regards to vaccination being changed, if anything she should have been made redundant.

It was also a breach of the Bill of Rights Act 1990 that gives everyone the right to refuse medical treatment and her being unvaccinated did not affect any other person in the workplace, a representative for the worker said.

However, Customs NZ disagreed because the role required the occupant to be vaccinated on health and safety grounds and a Government legislative order requiring certain "front-line' border workers be vaccinated in order to continue being employed at border facilities.

It also carried out an assessment of her role and found her position required someone who was vaccinated to preserve ongoing border security and employee safety at work.

Customs also defended it not being a restructure because the position was still in need of filling and the scope had not changed. The only change was the requirement to be vaccinated.

In his findings ERA member David Beck fully sided with Customs, saying the role the woman occupied could only be safely undertaken by a vaccinated worker and that the dismissal was prompted by extraordinary external factors outside the control of the parties".

"I cannot conclude that (worker) could not have avoided being dismissed."

Beck also believed that the worker should have reasonably anticipated that the issue of a vaccination would come up when accepting the position of a front-line border protection officer.

While Customs did everything it could to find her a different role off the frontline, he accepted this was difficult due to geography and skill set.

The worker had previously set up a Givealittle page to raise funds to pay for her legal costs. Costs were reserved.

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