The Employment Relations Authority has ordered an employer to pay $33,250 after the unjustified dismissal of an employee. The employee raised a personal grievance claim against the employer after he was dismissed for not receiving the Covid-19 vaccine.

At the peak of the Covid-19 pandemic the employer mandated that its employees receive the vaccination. The employer stated that if an employee decided not to receive the vaccine their employment would be terminated.

The employer however stated that if an employee received the vaccine during the four week notice period, they would be reinstated to work.

The employee initially disagreed with the mandate, but after being put on notice that his employment would be terminated, decided to get the vaccine.

The employee was reinstated under four conditions. These conditions were contained in a letter that the employee was given on his first day back. These conditions were:

  • The employee must receive his second vaccination within two weeks of his return to work;
  • A mask must be worn at all times;
  • A social distance of 1 metre must be maintained at all times;
  • Separate lunch breaks and segregation for other staff members during break.

Shortly after his return to work, the employee was seen sitting within one metre of a colleague in the break room with no mask on. As well as this, the employee was seen the next day eating lunch with other members of staff.

After this second incident a senior employee pulled the employee aside and expressed his displeasure with his actions. He told the employee that his conduct would not happen again.

Later that afternoon the employee was given a letter that required him to attend an investigation meeting, scheduled for the following day.

The meeting was adjourned after less than 30 minutes, and was resumed two days later. At the second meeting it was decided that the employee’s actions constituted serious misconduct and that he was to be dismissed effective immediately.

The Authority decided that the employee had been disadvantaged by the employer’s actions, because a fair and reasonable employer would have conducted a less flawed risk assessment when deciding to implement a vaccination mandate.

It was also decided that the dismissal of the employee was unjustified as the amount of notice given for the meeting was too little. Because of this the employee was not given reasonable opportunity to decide on the level of representation he wished to have with him at the meeting.

It was also decided that by the time the second meeting commenced the decision to dismiss had already been made. The Authority decided that there was not enough opportunity for the employee to respond to the decision.

The Authority then had to determine whether the employee contributed to the personal grievance claim. It was decided that the actions of the employee were capable of being serious misconduct, and that the employee therefore contributed to the personal grievance.

The Authority accordingly reduced the award by 33%.

The employer was ordered to pay $21,850 in compensation for the hurt and humiliation caused by the employer’s actions, and $11,400 of lost wages.

If there is confusion around the proper dismissal process, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley & Matthew Binnie