Vaccination at heart of dispute

A109 Light Utility Helicopter flight with mayor Gisborne City from the air in November 2023.

A youth worker who lost her job at Oranga Tamariki after she refused to be vaccinated against Covid-19, is fighting for her job back.

Hilary Seymour went to The Employment Relations Authority (ERA) with a personal grievance in March last year, having been dismissed in January from her job with Oranga Tamariki (OT)  in Wairoa.

Her dismissal followed the introduction of the Covid-19 Public Health Response (vaccinations) Order 2021 (Public Health Order). Ms Seymour chose to remain unvaccinated following a process which included notification by Oranga Tamariki that it could not legally permit her to continue working.

Ms  Seymour claimed she had been unjustifiably dismissed because the Public Health Order didn’t apply to her role and alternatives to dismissal were not exhausted. She also claimed she had been unjustifiably disadvantaged in her employment, that she was subject to coercion, and that Oranga Tamariki breached part of the Health and Safety at Work Act 2015 in its implementation of the Public Health Order.

In response, Oranga Tamariki argued the ERA should not investigate any of the claims. The latter three had not been raised with OT at all within the 90-day statutory time frame and the claim of unjustified dismissal was not properly raised within the 90-day period because it lacked necessary information as to how OT could address the concern.

In a recently-released decision confined solely to the issue of whether Ms Seymour was entitled to have her claimed case investigated, the ERA agreed with OT that the latter three claims were out of time. The authority said correspondence Ms Seymour sent to OT ahead of receiving the dismissal letter voiced her concerns about the “forcing of the jab”, but did not indicate she was raising a personal grievance.

“Whilst the specific type of statutory personal grievance does not necessarily need to be referenced in raising a grievance, the correspondence of 11 and 19 November 2021 makes no mention at all of the Health and Safety at Work Act 2015, breaches of workplace health and safety obligations, coercion, inducement, consultation, good faith, hazards or risks in the workplace, or any other matters that might conceivably be relevant to the basis of either the unjustified disadvantage or other claims as articulated in the statement of problem lodged,” the ERA said.

However, Ms Seymour’s claim of being unjustifiably dismissed was “of a different category”, the ERA said. Emails Ms Seymour sent to OT in February and March — in response to her dismissal — clearly put OT on notice about her personal grievance and the nature of it, sufficient to enable it to respond.

“Whilst the emails of 11 February, 2022, and 25 March, 2022, contained little in terms of explaining the reasons for Ms Seymour taking issue with her dismissal, it was clear enough, particularly having regard to the pre-termination communications received by Oranga Tamaraki, that she took issue with the implementation of the Public Health Order and that the consideration of alternatives to dismissal was insufficient.

“By referencing reinstatement in the email, it was clear that Ms Seymour wanted OT to address her concerns,” the ERA said.

Ms Seymour had raised her claim of unjustified dismissal within the statutory timeframe and was entitled to have it investigated, the ERA said.

The authority had earlier refused her request to issue an order reinstating her to the job ahead of the final determination of the case, which is yet to be heard.

‘Lost her job through no fault of her own’