Covid-19 Omicron outbreak: Unvaxxed CAA staff fail in appeal to get jobs back

Lawyer Sue Grey represented the group of workers in the Employment Court but failed to get them their jobs back on an interim basis. Photo / Supplied

Four aviation security officers who lost their jobs after refusing to get vaccinated, have had their bid for temporary reinstatement dismissed.

The group took a case against the Civil Aviation Authority (CAA) to the Employment Relations Authority (ERA) in October after being told they would lose their jobs if they weren't vaccinated.

They all worked at an "affected" airport in New Zealand that received international arrivals, and claimed their primary role and duties were scanning outgoing passengers and carrying out "landside" duties - activities between the airport boundary and boarding gates.

They had been employed for periods ranging from four years to 24 years.

In April, the CAA issued a vaccination order that they needed to be vaccinated by May 1.

In May, meetings were held with three staff members, who said they would not get the vaccine because of its safety, efficacy and integrity, and its manufacturing process.

A fourth person provided a medical certificate.
Meetings continued in June, before they were told that if they were not vaccinated by July 31, they would be unable to attend work and need to take unpaid or annual leave until they got a vaccine.

On August 26, they were told their "employment would end on 27 September 2021 unless a suitable redeployment opportunity became available".

They were placed on leave.

With their lawyer Sue Grey, they took their fight to the ERA.

The aviation security officers (ASOs) sought reinstatement of their jobs, claimed the work they undertook was not covered by the Amendment Order and that the CAA breached its statutory obligations, the Bill of Rights, and the collective agreement.

The ERA found that on the untested evidence, the claim of permanent reinstatement was less strongly arguable than the claim of unjustified dismissal.

The group then took the matter to the Employment Court last month to get their jobs back on an interim basis.

They argued their jobs could be adapted to exclude red zone areas, but the CAA said all staff needed to be able work anywhere at the airport in case there was an emergency.

Both parties argued at length around what an ASO role involved and the areas they worked.

Grey said she focussed on the work that staff usually or actually do, and that the CAA centred on work that might hypothetically be performed by an ASO.

Grey submitted if the staff were granted an exemption, an unvaccinated ASO could carry out their functions in an emergency.

She also said that under an alteration to legislation in November, if a person was not vaccinated by a specified date the employee's employment agreement could be terminated by giving notice but, before doing so, "the employer must ensure that all other reasonable alternatives that would not lead to termination of the employee's employment agreement have been exhausted".

She said the emphasis was on preserving employment relationships, not terminating them.

Grey also suggested that fundamental rights and values were at stake, and that the court should take into account the fact that the plaintiffs were dismissed solely because they chose personal bodily integrity over continued employment.

In his judgment released this week after hearing held in urgency, Judge Bruce Corkill found it could not be said that ASOs only interacted with international departing or transiting passengers; or that they only worked airside and not with international arriving who are transported to MIQ,

It was clear in their job description that they could work anywhere at the airport, he said.

"Because I have concluded that it is only weakly arguable that ASOs are not
required to work all aspects of their job descriptions, it must follow that it is only
weakly arguable that 'certain work' does not include all aspects of the job description."

The CAA argued it wasn't practical to modify their roles as it would be a breach of the law and also place other staff under unfair pressure, which the judge accepted.

"I recognise and respect the right of the plaintiffs to have reached the conclusions they did for the reasons each of them has set out carefully in their affidavits," Judge Corkill wrote, "however, the court must resolve the issues before it on the basis of binding legislative provisions."

"However, it is not for the court to decide that a different approach is now justified as a matter of law."

Judge Corkill said the matters needed to be fully investigated first.

"I am not persuaded that the interests of justice require the making of interim orders of reinstatement.

"In my view, any such possibility must be left to follow a full exploration of all the circumstances, both those which led to the termination, and those existing at the time of the hearing."

The judge did not order interim compensation as he found the plaintiffs would find it difficult to pay it back if they lost their case.