In what could be a sign of things to come, nine customs workers, including four in a single provincial port, have been fired for refusing the Covid-19 vaccine.
One of the maritime frontier workers said she was devastated to be fired and frustrated by what she said was the lack of consultation from the agency. She asked not to be named because she feared public criticism for her decision not to vaccinate.
Customs defends its communication with the workers, saying it cannot offer redundancies that the fired staff demand because their roles are not abolished.
Their contracts were terminated after customs could not find a suitable alternative role for the workers.
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Auckland’s employment lawyer Catherine Stewart said employers of workers required to be vaccinated are likely to be able to justify dismissing a non-vaccinated employee.
They point to the Covid-19 Public Health Response (Vaccinations) Order and explain that they are not able to legally continue with an unvaccinated person in the role.
“But material justification is only one aspect of a justified dismissal, and the employer will also have to follow a robust process before any dismissal,” she said.
“This means that they need to consult with the staff and if a worker is reluctant to be vaccinated, find out the reasons for this and work with them to try to persuade them effectively to be vaccinated.
“If the worker is still unwilling to be vaccinated, the employer should consider alternatives and try to reassign the worker to a role that does not require vaccination in order to save the worker’s employment.”
She agreed with Customs’ view that dismissal provisions in employment contracts would not come into play where a worker is dismissed because they are unvaccinated.
“It is important to remember that a person cannot be vaccinated against their will; an employee has the right to refuse to be vaccinated. However, the consequence of this may be the loss of their jobs. ”
The shootings came on the eve of the Covid-19 Public Health Response (Vaccinations) Order 2021, which went into effect.
It requires that all workers in managed isolation and quarantine facilities (MIQs) and those working for government agencies at the border be vaccinated.
The worker had a role until Friday in a provincial port that oversees international ships and ensures that stevedores and their crew take appropriate Covid precautions, including protective equipment.
“We took it seriously, it’s really important. If we were not there, people would relax. ”
The woman said she never came into contact with the international crew and believed there was not enough risk to justify her having to be vaccinated.
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She was not a union member and got a lawyer to write to customs in December, asking management to keep her informed in the event of changes in their role.
However, she said she found out through the media in March that workers like her who refuse to be vaccinated could be excluded from frontline checks.
The woman did not reveal her reason for not getting the vaccine.
“I do not have to … explain why I do not want to be vaccinated, it is my choice under rights law.”
Cases came to the fore at a meeting Thursday.
Management said the nature of her position meant it was not possible to change her role to reduce her exposure to Covid-19, according to a letter sent the following day she ended her employment.
“We have also informed you that the customs service has searched for internal redistribution options for you, none of which were available in […] region, but customs are looking for external redistribution options through the Public Services Commission’s Workforce Mobility Hub, ”the letter said.
The woman is supported by attorney Christchurch’s labor law Ashleigh Fechney.
Fechney said at the meeting that customs actually went through a layoff process, that there was not enough health and safety risk or legal basis to require mandatory vaccination for her position, and that customs had not followed a fair process.
The agency disagreed.
“The roles continue and we recruit for them,” the letter said. “Given the issues we discussed at the meeting, including the reasons why customs require your position to be performed by a vaccinated person, the government’s requirement is that non-vaccinated frontier workers cease to work in these positions before 1 May, and in the absence of appropriate redistribution options, we advised that the Customs had decided to terminate your employment as proposed.
“Treat this letter as a formal notice of termination of employment in accordance with Part 9 of your Employment Agreement.”
She was not required to prepare her notice and will be paid for the four weeks as a lump sum in her final salary.
The woman said she was frustrated and disappointed.
“I just feel underestimated. It’s been very, very uncomfortable, very unprofessional, and it’s devastating. ”
University of Canterbury Professor Michael Plank is convinced that vaccination of young people is essential to ensure that New Zealand reaches herd immunity.
Fechney, who is in favor of several other customs workers in a similar situation, said the government should pay the fired workers compassionate compensation.
“If you want to quit, at least do it in a redundancy setting,” she said. “They gave up their own health and safety to protect the borders.”
The worker was also given the opportunity to remain employed for four weeks, while customs searched for suitable jobs with other government agencies, such as Corrections.
“None of my clients were interested in it,” Fechney said. “There is a big difference between working in corrections and working in customs.”
Fechney said her clients were also annoyed that their service certificates said they had resigned their roles.
“It makes it feel like it’s their choice to leave, but it’s not their choice.”
Customs and Capacity Deputy CEO Jacinda Funnell said they would change the service certificates if asked.
She confirmed that nine customs officials, including the four in the provincial port, had terminated their contracts because they were not vaccinated.
Over 95 percent of customs personnel have had their first dose and more than 85 percent the second dose, she said.
“We have been able to relocate most of the people who have not been vaccinated,” she said. “There were just a very small number that we simply could not find redistributive opportunities within customs. We tried to work with them to find them roles in other organizations.”
If they fired workers, they would not be legally able to replace them, she said.
Funnell rejected comments from Fechney and the workers that communication and consultation were lacking.
“I think we have made a great effort to consult people. Senior managers have traveled to all these ports to talk to the staff, we have run many, many sessions online and in person with the staff, they have had opportunities to talk to their managers. ”