A worker at Auckland International Airport has had his job reinstated on an interim basis after he was dismissed with one month's notice for choosing not to get vaccinated against Covid-19.
An Employment Court judge ruled the man, who requested name suppression, must remain on leave until the Employment Relations Authority can rule on his case.
The man, a senior mechanical maintenance technician, had worked at the Auckland airport for 15 years and was described as a valued employee.
Employment Court Judge Bruce Corkill ruled this week that the man be reinstated to his former position, but remain on paid leave for a period of two months from September 30, and on unpaid leave thereafter, until a further order of the ERA.
The man's role at the airport meant he was required to have the first of two injections by the close of September 30, 2021.
The only exemption was if the person fell within the definition of an excluded airport person or was otherwise outside the scope of the Covid-19 Public Health Response (Vaccinations) Order 2021 (the Order).
At the time the man said he was confused by the order and whether it applied to him.
He also raised a number of issues as to the efficacy of the Pfizer/BioNTech Covid-19 vaccine (Pfizer vaccine), which he described as "experimental" including whether that vaccine was an "experimental mRNA gene-altering therapy".
He said he had a medical condition and was "terrified" about the health consequences.
The medical condition was not detailed in the Employment Court judgment.
In a meeting with his manager, it was suggested he get a medical certificate to say he could not get the vaccine because of the medical condition.
But the man said his GP would not agree to provide a medical certificate to say he could not receive the vaccine due to his condition.
When the Delta variant hit New Zealand in August airport management decided to bring the requirements of the order forward to August 31.
Because the man had not been vaccinated by that date, the airport gave four weeks' notice of termination of his employment on September 1.
He was to remain on leave for the period of notice unless he was vaccinated in the meantime.
This was on the grounds he could not lawfully work in his position after that date, given the terms of the Order.
On August 28 the man filed a complaint with the ERA raising a disadvantage grievance but it was ruled there was no statutory basis for granting the orders sought.
The man challenged the ruling in the Employment Court where it was heard on September 13.
It was found the ERA did not lack jurisdiction to make an interim order.
An investigation meeting in the ERA took place on September 24, and it was anticipated the determination would be issued by September 30.
But this was issued late on October 7.
It found there was a seriously arguable case in relation to the man's disadvantage grievance, but not whether he would ultimately be permanently reinstated, which was considered arguable but ultimately weak.
The application for reinstatement was declined.
The man challenged the decision immediately, saying he was not seeking reinstatement so that he could return to the workplace, but so that he could remain as an employee on leave and have time to discuss the issues in good faith with the airport.
He said he had been a loyal employee for 15 years and did not want to lose his job.
His claim focused on whether he was covered by the order, and whether the airport acted as a fair and reasonable employer.
The airport said it acted appropriately, and that there was no basis for an order of interim reinstatement.
But Judge Corkill found the steps taken by Auckland International Airport were not those of a fair and reasonable employer.
The judge found there was no evidence the airport had worked through a modified work proposal the man put forward.
The judgment said direct evidence from the man's GP on any effect the Pfizer vaccine might have on someone with the man's condition was necessary to make a decision.
A proper understanding of these issues may assist the airport in considering the man's circumstances and work options, the judge said.
The judge said the man's claim was arguable and was not "frivolous and vexatious".
He said interim relief was appropriate before an ERA investigation meeting could be held on January 26.