New Zealand, Employment Court of New Zealand, Christchurch, 24 January 2022, NZEmpC 5
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Link to the full text of the decision
The plaintiffs challenged a decision from the Employment Relations Authority regarding their dismissal from their employment as Aviation Security Officers. The reason for dismissal was not complying with a mandatory vaccination order of the relevant airport authority. The basis of the claim was that there were serious questions to be tried in regards to their dismissal and that overall justice and the balance of convenience favoured the remedy sought, namely permanent reinstatement. The plaintiffs argued that the mandatory vaccination order did not apply to them and they should not have been terminated because they chose “bodily integrity over continued employment”. Plaintiffs argued that the Bill of Rights should be considered when interpreting and giving effect to the mandatory vaccination order. The Court held that this argument was only weakly arguable. The challenge was dismissed.
Facts of the case
The four plaintiffs were dismissed from their employment as Aviation Security Officers because they had not been vaccinated pursuant to a mandatory COVID-19 vaccination order which they claimed did not apply to them. As government employees they were subject to a mandatory COVID-19 vaccination order from the Department of Health. They appealed this decision to the Employment Relations Authority (ERA) which was not successful; however, the ERA found there was a serious issue to be tried on the basis of unjustified dismissal. They made a de novo application to the Employment Court seeking permanent reinstatement on this basis. The Court was required to determine the matter “on an assessment of the overall justice of the case”. The first issue to be determined was whether there was a serious question to be tried and the second issue to be considered was on a balance of convenience. The Court held that the Order did apply to them. The Court held that the employer, in not considering reasonable redeployment, raised an arguable claim in relation to procedural flaws in their dismissal but there were no other remedies other than reinstatement which was not practical in the circumstances. It was held that the balance of convenience favoured the employer. The challenge was dismissed.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court determined the matter on the balance of convenience and overall justice. The Court considered that the subordinate legislation resulting in the mandatory vaccination order was duly verified by the House of Representative and formed part of an Act which is current until April 2023. The Court was not presented with any evidence that the mandatory vaccination order was to be repealed before this time. The Court acknowledged the plaintiff’s rights to choose not to be vaccinated; however, it made its decision on the basis of what is a binding legislative provision. The Court determined that the plaintiff’s case was not sufficiently strong so as to enable the balance of convenience to favour them. Upon consideration of the balance of convenience factors, the Court decided that it was not in the interests of justice that the requested orders for reinstatement be made.
Conclusions of the deciding body
The Court was bound by what was a binding legislative provision, being the mandatory COVID-19 vaccination order for border employees. The Order applied to the plaintiffs. The balance of convenience favoured the defendants and, whilst there was an arguable case on the process the defendant’s took in regards to redeployment, the requested remedy of reinstatement was not practical in the circumstances. The challenge was dismissed.
Fundamental Right(s) involved
- Right to bodily integrity
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- S3, New Zealand Bill of Rights Act 1990
- S6, New Zealand Bill of Rights Act 1990
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. right to bodily integrity
General principle applied
- Due process
Balancing techniques and principles (proportionality, reasonableness, others)
The Court considered that, whilst there was an arguable case with reference to the lack of consideration given by the defendant to redeployment of the plaintiffs, it was not reasonable or practical to order reinstatement as this would put the defendants in breach of the mandatory vaccination order.