The right for Customs workers to refuse medical treatment has been breached, an employment law advocate has said.
Nine unvaccinated border workers fired by Customs may take their case to the Employment Court. Photo: RNZ / Simon Rogers
Nine staff, all in fixed-term employment at the maritime border, had their contracts ended early.
Customs deputy chief executive for people and capability Jacinda Funnell said the decision was taken to comply with public health regulations that came into force this month.
From 1 May, all workers in managed isolation and quarantine (MIQ) facilities and government agencies at the border had to be vaccinated.
Advocate Ashleigh Fechney, representing four of the Customs staff who have consequently lost their jobs, said it equated to an unfair dismissal.
"Our question is, do these particular people in their particular workplace, do they need to be vaccinated?
"The conclusion we came to, was probably not, because they don't actually have any interaction with international passengers or crew at all."
The staff were told on Friday they were losing their jobs, and paid out a month in lieu.
But the act of firing them is a breach of their rights, she said.
"Because they've been terminated, and there isn't a high enough risk of contracting Covid-19, I really think their rights have been impinged on, and that's the right, under the New Zealand Bill of Rights Act, to refuse medical treatment."
Fechney added the staff were never given the opportunity to discuss with Customs management higher up about their decision to not get vaccinated, and what implications it could have.
"We did raise concerns and write to Customs, but Customs took a very blanket approach, and said, 'We believe that you are high risk and therefore you need the vaccine, and if you don't get the vaccine, we're going to terminate your employment'.
"But we didn't actually get to have robust conversations about their role, and what the risks were, and what we saw it as."
Funnell said Customs did look into redeploying the workers into other positions, but that such options were not available.
It also looked into redeploying across the wider public service, but that was also not available.
Fechney said they were now looking to possibly go to the Employment Court, seeking compensation.
"[The] primary focus really will be looking to get compensation for the loss of their jobs. They didn't deserve it. They put themselves on the line, to protect New Zealand borders, and now they're just being hung out to dry, and it's not fair."
Customs responds
Customs deputy chief executive people and capability Jacinda Funnell told Morning Report she disagreed with a "number of things that were said".
"We've been talking to our staff since February this year about the vaccination and we've been very clear that our expectation is that people working on the frontline will be vaccinated. All of those people were contacted by the DHB and offered the vaccination and once we were clear about who hadn't been vaccinated we started a process of contacting those people individually."
"we've been very clear that our expectation is that people working on the frontline will be vaccinated" - Jacinda Funnell
That process began more than two weeks ago, despite what Fechney said.
Customs had run "numerous question and answer sessions, we were fortunate enough to have Dr Ashley Bloomfield come along and run a zoom session with all of our staff to answer their questions. We have sent senior managers to ports to address their concerns. For the staff that Ms Fechney is representing, we have been aiming to contact them since early March. We made attempts to contact all of them by leaving voicemail messages for them and what we received was a response from Ms Fechney asking us not to contact those people directly but to contact her."
Customs "absolutely" made efforts to contact the staff.
"We understand that people might be hesitant about being vaccinated and we understand there is a lot of misinformation... about the impact of the vaccine and what we have done is make available to people and push out all of the excellent Ministry of Health information about the vaccine to reassure people.
"The vast majority of our staff have been vaccinated."
The workers in question were fixed term employees hired in about October 2020 to "specifically to protect the maritime border against the risk of Covid-19".
"What these workers do is they are present on ports around New Zealand and their role is to enforce what is known as the Maritime Border Order. That requires that crew arriving in New Zealand on ships must quarantine for a certain period of time. It also requires that people working in those port environments wear their PPE.
"The role of our staff is to ensure that that happens."
Customs 'between a rock and a hard place'
Border and MIQ workers had been asked to work before a vaccine was available, putting their families at risk, so there was an emotional school of thought that significant steps should be taken to try to find alternative roles for them, employment lawyer Bridget Smith said.
"I'm sure [Customs] do want to do their best by the people who have done such good work for them over the past year, and they really are between a rock and a hard place."
Customs was obliged to follow the government's Public Health Response (Vaccinations) Order, requiring MIQ staff and those who work for government agencies at affected airports and ports to be vaccinated.
"We're talking about groups of people who have been working, putting themselves and their families at risk, over the last 12 months" - Bridget Smith
The dismissals raised questions over why an organisation the size of Customs would have no redeployment options, but Smith said in a region where there were limited Customs roles, and the worker was unable or unwilling to relocate, redeployment would be more difficult.
However there could be unfair dismissal claims on the grounds of the particular work particular work an individual was doing.
"If an individual was never coming into contact with affected ships or crews, then he or she may well have an argument that they are not required to be vaccinated under this order."
She expected more employment issues to arise as the vaccine was rolled out.
"It's highly unlikely that we're going to see the government issue orders that apply to, for example, retail stores or hospitality businesses," Smith said.
"It's going to be up to employers in that situation to manage risks with their particular employees and the appetite of those employees to be vaccinated and the appetite of the employers to have employees who may or may not want to be vaccinated."
Meanwhile, Immunisation Advisory Centre national manager Loretta Roberts told First Up they were doing work around vaccine hesitancy.
"Making more resources available but also getting our healthcare professionals who are vaccinating very confident in being able to talk people through some of the concerns or hesitancy they might have about the vaccine," Roberts.
"That's a piece of ongoing work, and it's important - it's important that people get the opportunity to ask questions but also be able to understand how the vaccine works and why we know it is safe."