Employment Court – COVID-19 – Unjustified dismissal – Non-compliance with vaccine mandate – Interim reinstatement
At issue was whether the employee should be awarded interim reinstatement, pending a hearing into his unjustified dismissal claim.
The employee was employed as a tug engineer in a port. Under the COVID-19 Public Health Response (Vaccinations) Order 2021 (external link) (the vaccination order), the employee was required to be vaccinated to perform his role. The employee was dismissed for not complying with the vaccination order.
Following his dismissal, the employee was involved in or wrote various anti-vaccination communications that were sent to the employer. The communications threatened the employer with criminal complaints, accused it of murder, demanded $100 million as settlement and demanded that it “[c]ease and desist all coercion to comply to the procurement and administration of the COVID-19 vaccination” (see para 12).
The employee sought interim reinstatement in the Authority, pending a hearing into his claim of unjustified dismissal. The employee sought reinstatement on the basis (see para 19):
(a) He was not a person covered by the vaccination order.
(b) He had valid exemptions from the vaccination.
(c) The employer had failed to properly consider any modifications to his role that would allow him to continue working without vaccination.
The Authority declined to order reinstatement. The employee appealed the determination in the Court. In the interim, the Government revoked the vaccination order.
The Court declined to order interim reinstatement, as it considered permanent reinstatement was not seriously arguable (see para 30). The Court took into account that:
- Another person had been appointed to the role (see para 26).
- The employee’s “extreme” conduct after the dismissal meant trust and confidence no longer existed (see paras 26–29).
The Court considered that the balance of convenience and overall justice also did not favour the employee; interim reinstatement would affect the person who had taken over the role and other employees against whom the employee had made “serious allegations and implied threats”; whereas the employee had had some work since his employment ended (see para 33, 34).
The Court considered the employee also had a “relatively weak case for unjustifiable dismissal and his post-employment conduct [had] almost certainly cause irreparable harm to the relationship with the employer” (see para 35).