The Covid-19 Pandemic was a trying time for a lot of employers and employees. The pressures of supply-chain delays, lockdowns and the general unrest of a global pandemic made doing business more difficult than ever.
While we would all like to forget that period – some people are only now receiving the compensation for wrongful dismissals which occurred in the COVID-19 context.
The Employment Relations Authority (ERA) recently awarded approximately $29,000 to a line-haul truck driver who was dismissed for not getting vaccinated against COVID-19.
Background
Wayne Basher had been working as a trucker driver for Big Chill Distribution Ltd since 2011. During 2021 he was a line haul driver between Hastings and Putāruru. His role primarily involved him driving alone overnight although he was required to have some limited interaction with others.
When the company introduced a mandatory vaccination policy in December 2021 Basher refused to be vaccinated and was dismissed from his employment as a result.
Issues
Among other things, Basher claimed that Big Chill’s assessment of his role as high risk and requiring vaccination was not justified. He said that as an overnight linehaul driver who drove alone, his role was not forward-facing and he could ensure separation distances were kept when he was in the depot.
Big Chill said it was a high risk role – it had categorised all of its positions as high risk. It stated, among other things, Basher’s role involved driving between communities and working in cool store environments (where there is limited airflow, and he works alongside store people and drivers). It also said there were also occasions where other Big Chill drivers may need to travel as a passenger in his truck.
A key issue was Big Chill’s health and safety assessment. It claimed it had done a thorough assessment of all individual roles, however what it provided to staff was a consultation document which included a summary of the health and safety risk assessment, not the actual assessment for Basher’s role. Basher asked for this, however it was not produced. Big Chill’s response to why it did not send out the individual risk assessments, and sent a summary only, was to the effect ‘it wanted to inform, but not overwhelm’.
Basher’s employment was terminated on 21 February 2022 as he had not had his first vaccination.
Held
The ERA stated “The risk assessment is central to the inquiry about fairness because there is a direct line from the risk assessment, through the development and implementation of Big Chill’s approach to vaccination and vaccination policy, to Mr Basher’s dismissal.”
It commented “The step that Big Chill took in either ignoring or declining to provide Mr Basher with more information around the health and safety risk assessment for the drivers to justify its assessment of his role as “high risk” was not a step that a fair and reasonable employer could take.”
It held that this failure was more than a technical flaw, and undermined the overall fairness of the process Big Chill followed, calling the review Big Chill carried out (the secondary review as recorded by its 19 January 2022 letter) “… little more than a perfunctory paper-based exercise…”.
The ERA decided the matter in Basher’s favour on the grounds Big Chill did not follow a fair and reasonable process in terms of the risk assessment, nor did it consider leave as a reasonable alternative to termination.
Basher was awarded The ERA awarded $15,000 in compensation for humiliation, loss of dignity and injury to his feelings, and $13,967 for three months of lost wages.
To Note
Despite the ultimate finding, the ERA found in Big Chill’s favour on two other points, stating that the company did not breach Basher’s individual employment agreement and did not violate its obligation of good faith regarding the privacy of his personal medical information.
Takeaways
The case highlights the importance of employers following fair and reasonable processes that are specific, and tailored to individual employee’s roles and circumstances. Employer’s need to be considerate with how they engage when employee’s raise concerns or ask further questions.
If you are an employer or an employee and need assistance with issues at work, please contact the team here at Watermark Employment Law – we are happy to assist you.
09 532 8211