Mental health worker sacked after refusing Covid-19 vaccine awarded $43k

A former Healthcare NZ worker who refused to be vaccinated has been awarded more than $40,000 after challenging its decision to sack her. Photo / Bevan Conley

An employment tribunal has ruled a mandated mental health worker who refused to be vaccinated against Covid-19 had a ‘sound basis’ for refusing the jab, despite being sacked after the Ministry of Health denied her a vaccination exemption.

Now the former HealthCare New Zealand (HCNZ) employee has been awarded almost $44,000 after the Employment Relations Authority last week ruled she was unjustifiably dismissed, in a decision the authority member said was a “close call”.

Tauranga woman Andrea Hoyle began working for Healthcare New Zealand in May 2016, supporting older adults with mental health issues predominantly in-person between Waihī Beach and Te Puke, the determination says.

In late 2021, when the Government announced vaccination mandates for the health sector, Hoyle’s boss Vanessa Kirk was aware of her reservations from an earlier discussion.

On October 27, HCNZ’s chief executive sent what the authority described as a “stark message” to employees, stating if employees chose not to get vaccinated, “you will leave behind any chance of working in the health sector anytime in the future”.

An email sent the next day by a senior manager called for people to be respectful of vaccine-hesitant employees.

On November 4, Hoyle told Kirk she feared vaccination would lead to her death due to a pre-existing medical condition that is not detailed in the decision. She repeatedly told her boss she was not refusing the vaccine but was “medically unable” to receive it.

The authority noted that while Hoyle had asked her privacy be respected regarding the medical condition, “the reasons appeared understandable and genuine”.

At a meeting on November 11, Kirk informed Hoyle the first vaccine must be obtained by noon four days later, but Hoyle continued to say she was medically unable to.

She was encouraged to apply for an exemption but said the process was unfair and was told she did not qualify, despite her GP’s support.

Kirk explained the mandate left the company with no choice but to end Hoyle’s employment four days later. Kirk suggested the company would consider redeployment opportunities but cautioned this was unlikely.

Kirk later revealed to the authority that the company’s human resources department had told her the job couldn’t be adapted, but she didn’t share this with Hoyle at the time.

After the meeting, Hoyle sought a formal exemption, discovering HCNZ’s process meant while an application was being assessed by the Ministry of Health, the employee could take annual leave or leave without pay until the application was progressed.

But at this point, Hoyle had already been told of her last day and had a farewell lunch organised by her boss.

HCNZ said the option of leave without pay was explored, but Hoyle had made up her mind not to be vaccinated. The authority ruled leave without pay was not generally explored as an alternative to dismissal.

The day before she was due to leave, the Government extended the timeframe for the mandate by one week. But earlier that day, Hoyle sent her boss a 28-page letter contesting the legitimacy of the Government’s actions.

She told the authority she was angry and downloaded a generic letter from the internet, forwarding it on.

“The letter was, to say the least, intemperate and significantly discursive,” authority member David Beck said.

Hoyle's reasoning for refusing the vaccine was "soundly based rather than irrational", according to the authority. Photo / Bevan Conley

Hoyle obtained a medical certificate saying she was unfit for work for 16 days. She attended work until November 18 and was then provided paid sick leave until December 1.

Hoyle was then placed on annual leave while her exemption application was progressed. HCNZ made no effort to seek Hoyle’s agreement on the timing of the annual leave and failed to give her 14 days’ notice as required by the Holidays Act.

On January 26, Hoyle emailed her boss to advise the exemption had been declined. Anticipating her employment ending, she asked for the possibility of a “phone/video support role” where she would work from home.

Kirk said all roles were covered by the mandate and the company couldn’t accept remote working arrangements. Hoyle was paid out for her four-week notice period and ended her employment immediately.

The authority found HCNZ sufficiently communicated its concerns with Hoyle’s unwillingness to be vaccinated.

But once HCNZ became aware Hoyle would not get vaccinated, she was dismissed without an opportunity to comment on the proposal to dismiss her, the authority ruled.

“This is despite HCNZ’s own code of conduct in the collective employment agreement, specifying that prior to concluding a dismissal, an ‘outcome meeting’ is to be convened to deliver a ‘preliminary decision to dismiss’ and the worker is then afforded a minimum of 48 hours to submit a response.”

The evidence showed the company did not engage with Hoyle’s suggestion she temporarily work remotely, the authority further ruled.

The company’s blanket stance that no redeployment options were available does not exculpate the statutory duty to exhaust all reasonable alternatives to termination, the decision said.

“Objectively, I find that Ms Hoyle’s offer to work from home posed a reasonable alternative to her dismissal that was not adequately explored. It was not ideal, but in the circumstances, it should have been genuinely considered.

“I also find HCNZ had cause to empathise and accept that Ms Hoyle’s decision to not be vaccinated was soundly based rather than irrational.

“In these exceptional circumstances, adaption of Ms Hoyle’s role and retention of a committed and experienced worker of five and a half years’ standing, could have been explored.”

The lack of direct engagement between the business’ human resources team and Hoyle was also an issue, the authority ruled, though it appreciated Kirk had attempted to initiate this but received “inadequate advice”.

Beck also acknowledged the difficult position HCNZ was placed in, having to adhere to the mandate covering almost all of its staff in such a short timeframe.

Beck concluded Hoyle was unjustifiably dismissed, awarding her $25,920 in lost earnings and $18,000 compensation for hurt and humiliation.

But Beck recognised Hoyle also contributed to the situation, namely by the aggressive tenor of her letter dated November 22, and evidence from Kirk that Hoyle was promoting anti-vax views in the workplace.

Her compensation was reduced by 10 per cent.

Responding to questions from NZME, Healthcare New Zealand chief executive Jane Kelley did not specifically address whether the business agrees with the decision.

“We acknowledge the Employment Relations Authority’s decision, which we are currently reviewing. We appreciate the ERA’s recognising [of] the significant pressure HealthCare NZ was placed under due to the Government’s vaccine mandate to healthcare workers.”

Hoyle declined to comment.

An earlier version of this story reported that Hoyle downloaded the generic letter from Voices For Freedom as outlined in the determination. However, the ERA issued an erratum on March 9 amending the determination to remove reference to Voices For Freedom.