Can the Employment Court challenge the validity of a Covid-19 order?
As employment lawyers, we have many unvaccinated clients ask us whether they can challenge the validity of the Covid-19 Public Health Response (Vaccinations) Order 2021 (“the Order”).
The recent decision of Malcolm v The Chief Executive of the Department of Corrections in the Employment Court raised the question of whether that Court has the jurisdiction to challenge the validity of the Order. The matter came before the Employment Court from the Employment Relations Authority, where a group of 5 employees had attempted to challenge the validity of the Order.
Judge Corkill struck out the employees’ claims that related to the validity of the order, on the basis that “neither the Authority, nor the Court on challenge, can consider these issues.”
This was further to Judge Corkill’s statement in WXN v Auckland International Airport in November last year, below:
“Before assessing these arguments, I make a necessary preliminary point. It is not the role of this Court to assess the lawfulness of the Order; that is an issue for the High Court, as has been demonstrated in the various judicial review proceedings it has already considered. This Court has judicial review functions, but inquiry into the validity of an Order made by a Minister is not one of them. This Court’s analysis must be squarely focused on the application of the Order: whether WXN is an excluded worker or not.”
This does not mean that affected employees have no avenue to challenge the validity of the Covid-19 Order – but it is not within the employment jurisdiction. Employees have the option to file judicial review proceedings in the High Court, as recently seen in the successful challenge in Yardley v Minister for Workplace Relations and Safety.
If you have any questions on how the Order impacts your employment or your employees, please get in touch with the Watermark team directly. We are happy to advise you.