COVID-19 and the Workplace

December 15th, 2021 - Barbara Buckett

Have our workplaces become battle grounds? Have we lost our sense of tolerance?

As we near the end of the year and depart for the holiday break is it time to reflect on the uglier side of our employment relationships.

That this year has been a difficult one there can be no dispute.

Several major organizations have been investigated and found wanting for bullying and sexual harassment.

Then the Covid-19 mandates have thrown up complex legal dilemmas for employment relationships.

The problem for the employment law is the narrow health focus of the vaccine mandate doesn’t meld well into the more holistic approach of the employment law.

This was highlighted by Justice Francis Cooke in a case where aviation border workers lost their employment for refusing to be vaccinated.

The decision of his Honour highlights the right of those who take an opposing stance to challenge.

In his decision Justice Cooke said “the issue that is raised by the applicants in this challenge is clearly a legitimate one to raise with the Court. A fundamental right in the Bill of Rights is being limited.”

Looking at section 11 of the Bill of Rights Act 1993, Justice Cooke said that while people in their position “are not being forcibly treated in the sense they can decline to be vaccinated” he went on to say “the level of pressure is significant and amounts to coercion. The employees are forced to be vaccinated or potentially lose their jobs. This involves both economic and social pressure.”

Applying this to an employment relationship

Daily we are seeing coercion and compulsion in employment situations.

Employees are being coerced into a situation regardless of the mandates by blanket demands by employers for all staff to be vaccinated.

This cannot be justified and sets a dangerous precedent. There are many reasons why persons choose not to be vaccinated. There are many options available to employers to work around a compulsory vaccination situation. The science regarding whether vaccination is the only way to mitigate against the spread of the virus is not settled. For example, we are seeing the rise of Rapid Antigen testing in the UK.

There are supportive actions that an employer can take. The law requires constructive and supportive engagement to promote, not destroy, the employment relationship.

Leading up to Christmas we are seeing a significant number of people losing their jobs. This cannot be right.

Employers not covered by the mandate are wrongly reading the situations as an opportunity to change internal policies to force vaccination. This cannot be right.

The problem is that the government has not identified the harm that the mandate is trying to protect from. Without this explanation employers have rushed to an absolute position which cannot be justified. Employment law requires that each circumstance be assessed on its particular facts. Blanket imperatives are an anathema to employment law and will risk challenge.    

Employers are terminating employments without addressing the purpose or the reasonableness for the vaccination requirement within the specific work situation. For example, is it reasonable that an employee lose their job if there were reasonable alternatives to accommodate the job being carried out in a different way to accommodate the current situation?

Is it right that only those vaccinated have a right to a job? Or a career? Is it right that employees are systematically losing their jobs because of their beliefs and circumstances?

Leading into the break it is time to reflect.

Have a happy and productive break. 

Note: BuckettLaw takes no responsibility for the consequences of any actions taken on the basis of our articles. Any views expressed or comments made in an article are the writers option only. The content in our articles does not constitute legal advice. If you need legal or expert advice you should obtain specific advice about your case or matter from a professional. For legal advice based on your individual situation please contact us to speak with one of our expert lawyers.

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Barbara Buckett

Barbara Buckett is a highly experienced senior employment lawyer with over 35 years of practice in New Zealand. She provides expert advice on all areas of employment law and has a proven track record of delivering excellent results for clients. Barbara has extensive experience in resolving workplace issues and is an experienced litigator. In her free time, she enjoys reading, traveling, working out, and fine wine and dining with friends.

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