The Order was simple in its application. For example, teachers captured by the Order were required to provide evidence that they had received the first of the two vaccinations by November 15. If, by the Government's imposed deadline, the teacher could not show that they were vaccinated, then it was unlawful for an employer to allow them to perform the role for which they were employed, and as a result, a significant number of educators have had their employment terminated.
Foundational employment law principles state if an employee is ready, willing and able to fulfil the role for which they were employed, an employer is required to remunerate them in accordance with the terms of their employment.
If, however, the employee cannot work, and is not ready or able to work, then the traditional legal approach is that the employer was not legally required to remunerate that employee.
In applying this to the current situation, a teacher exercising their right not to be vaccinated was (as a result of the Order) neither ready or able to work, and the employer was not required to remunerate those staff and any subsequent termination could be on notice but unpaid. Whether employers followed this legally available course was up to them, but it was often the only economically viable choice for non-government-funded employers.
Had employers been empowered to determine how they would impose the Government's mandatory vaccination order, employers would have been able to set the relevant dates by which workers had to be vaccinated and at the same time ensure that any unvaccinated staff member could work out their notice period. This approach is beneficial for a range of reasons, including that the staff member can earn their remuneration and the employer can receive the benefit of the staff members' work.
The Government's arbitrary imposition of the Order, and the subsequent amendments to the ERA, changes the law. It requires employers who dismissed staff as a result of the Order to pay an extra four weeks' salary to an employee who, through no actions of the employer, are unable to work and/or contribute to the employer's business.
The amendment to the ERA also requires an employer, who is not captured by the Order but has decided to impose mandatory vaccination in their workplace, to pay the four weeks' notice period (or whatever notice period is recorded in the relevant employment agreement, whichever is the longer). In contrast to terminations resulting from the Order, an employer that introduces mandatory vaccination should pay affected staff their full entitlement, including payment of the relevant notice period. The distinction is that a termination in these circumstances is the result of the employer's decision and not one imposed by Government.
For the vast majority of the last 13 weeks, educational facilities in the greater Auckland area have been in lockdown and not trading. Despite not receiving an income over that period, they now are required to pay an additional four weeks' salary for each employee that is terminated as a result of the Order, even though the termination comes as a result of the Government's direction, and the employee is neither ready or able to work.
In my opinion, the Government should compensate all employers an amount equivalent to the notice period that the employer is now required to pay to any employee terminated, as a result of the employer abiding by the Government's vaccine mandate. This is not a cost already struggling businesses should have to front.
• David Grindle is director in charge of the employment law team at WRMK Lawyers. He has practised in this area of the law for 17 years.
