Basher told the Employment Relations Authority he was unjustifiably dismissed because Big Chill did not follow a fair and reasonable process before letting him go, and had coerced its staff into getting vaccinated during the Covid-19 pandemic.
Basher was dismissed on January 24, 2022 for not getting vaccinated under Big Chill’s internal vaccination policy.
This was the day after the entirety of New Zealand was placed on the “red” alert setting under the “traffic light” Covid management system, as the Omicron strain was spreading through the community.
Big Chill, part of the Freightways business, which employs more than 5000 people, consulted its workers on a vaccination policy in 2021 and encouraged vaccination with $75 payments and a lottery for fully vaccinated staff.
It announced in December 2021 it was introducing mandatory vaccination for all roles.
Basher refused to be vaccinated. He had argued he did not meet customers on a regular basis and the depots he worked at were large enough to ensure he could maintain adequate distances of separation when he was present.
Big Chill told the Employment Relations Authority it was “substantively justified” in dismissing Basher because he was required to be vaccinated to carry out his role under its policy.
But Basher said Big Chill was unjustified in introducing a vaccination policy. He says his role was wrongly assessed as being covered by the policy because no proper individual risk assessment was carried out.
He also said that even if driver roles were covered by the vaccination policy, Big Chill did not consider the way he carried out his role or workarounds he could make, and therefore “did not exhaust all other reasonable alternatives” that would allow him to keep his job.
Authority member Natasha Szeto said Big Chill either declined or ignored a request to provide Basher with more information around the health and safety risk assessment for its drivers to justify its assessment of his role as “high-risk”.
She said that was “not a step that a fair and reasonable employer could take”.
She said Big Chill could also have considered carrying out an individual risk assessment for Basher’s role, particularly because he was one of few cases of unvaccinated workers.
“Given the downstream consequences on Mr Basher’s employment, I consider a fair and reasonable employer could have genuinely engaged with him on the risk assessment, even in the context of a business that was continuing to respond to the impacts of a global pandemic,” Szeto said.
She said Big Chill could also have offered Basher leave as an alternative to dismissal.
“I have found that Big Chill did not follow a fair and reasonable process in terms of the risk assessment for Mr Basher’s role, nor did it consider leave as a reasonable alternative to termination,” Szeto said.
“It follows that Big Chill unjustifiably dismissed Mr Basher from his employment.”
Szeto found in Big Chill’s favour on two other grounds, saying the company did not breach Basher’s individual employment agreement, and did not breach its obligation of good faith to him in regard to the privacy of his personal medical information.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay.
