A group of Air New Zealand international flight attendants have lost their bid to claim they were unjustifiably dismissed when they did not receive the Covid-19 vaccine.
The group of six was dismissed in 2021 when they did not meet the statutory Covid-19 vaccination requirements of the time.
Air New Zealand said its actions were what a fair and reasonable employer could have done.
On July 12, 2021, changes to the rules meant vaccines were required for international cabin crew members and pilots.
They had to receive the first dose of the Pfizer vaccination by September 30, and the second dose of the vaccination no later than 35 days afterwards.
In late August that year, Air New Zealand invited the affected cabin crew members to attend a meeting to discuss the changes.
The meeting did not happen and in September, a lawyer contacted the airline on their behalf.
Legal representatives for both parties discussed the vaccine, the potential termination of their employment and the group being removed from duty.
They were invited to a meeting on September 28 to discuss the possible termination of their employment.
The meeting took place on October 4. Air New Zealand confirmed the alternative options for the applicants, which included offering the applicants leave without pay and possible redeployment.
The applicants argued they should be treated as being made redundant.
After the meeting, it was decided that redeployment was not viable. The flight attendants turned down the option of leave without pay.
They maintained their view they had been made redundant and for that reason, said the redundancy provisions of the collective agreement had been engaged. Air New Zealand disagreed.
On December 8, they raised a personal grievance, which has now been heard by the Employment Relations Authority.
“Much of the applicants’ submissions focused on whether the Pfizer vaccine was a valid response to the Covid-19 epidemic and whether Air New Zealand had properly scrutinised its use in the workplace,” said authority member Alex Leulu.
Leulu said they also argued that Air New Zealand did not have the right to require mandatory vaccination or terminate employment.
“The applicants also claimed Air New Zealand had acted unreasonably by failing to provide the applicants with adequate redeployment options to work in other areas of the company. They claimed Air New Zealand should have given them the option to continue to carry out their duties by allowing them to work on quarantine free travel flights (QFT).
“Although the applicants accepted they were offered the option to take leave without pay, they said they declined the offer because it was uncertain whether they would return to their positions. Some of the applicants explained their situation was made more difficult because they were declined a chance to withdraw funds from their superannuation scheme. The applicants appeared to lay some blame on Air New Zealand for the scheme provider’s decision to decline the applicants fund withdrawal.”
Air New Zealand said its actions were justified and the attendants’ decision not to get vaccinated meant they could no longer lawfully carry out their duties.
“Air New Zealand also claimed it appropriately explored alternatives to ending the applicants’ employment by considering redeployment and offering an option for leave without pay for a year. These options were declined by the applicants for different reasons.”
Leulu said the applicants fell within a group of people who needed to be vaccinated in accordance with the July 2021 Covid-19 Public Health Response Order.
“Once the amendments were confirmed, it was logical for Air New Zealand to try and establish who was vaccinated and what steps would need to be taken in cases where staff may not be vaccinated by September 2021.
“After ongoing communications with the applicants and reasonable attempts to try and source an alternative to ending the employment relationship, Air New Zealand terminated the applicants’ employment… Air New Zealand’s process and its reasons for ending the employment relationship with the applicants were actions of a fair and reasonable employer in all the circumstances at the time. The applicants had not established grounds for personal grievances for unjustified dismissal.”
The claim for exemplary damages was also dismissed.
