In this post, I am informing you how to apply to the Employment Relations Authority to remain employed on leave, pending the outcome of the judicial review at the High Court.
I am available to represent: however, it is likely that I will reach capacity of workload. I am therefore publishing this information for any individual, group or representative to use.
Please shamelessly use the templates: my interests are in keeping people employed, and the more representatives, the better I can achieve this goal.
RISKS / REWARDS
There are risks that, if unsuccessful, you may be liable to pay a portion of your employer's legal costs. The daily tariff is $4,500 for the first day of any matter and $3,500 for any subsequent day of the same matter. See the Authority's practice note here.
In commencing this process self-represented, you acknowledge that you are taking on the risk of an adverse costs award. I will provide as much guidance as I can: however, ultimately, you are making this decision and you are responsible for that decision.
Remaining in employment is the best remedy available under our employment framework. If your employment is terminated in reliance on the Vaccinations Order, you will likely be unsuccessful in any personal grievance for unjustified dismissal.
You can also claim compensation for the hurt and humiliation suffered.
STEP ONE: Prepare the Statement of Problem
I attach a template Statement of Problem.
The Employment Relations Authority's website provides additional information.
If there are a group of you, you may want to make a joint application. You can simply amend the cover sheet to include "first applicant", "second applicant", and so on. A joint application is appropriate for employees of the same employer, who hold the same role: the idea being that the facts are the exact same.
Your chances of success will increase if:
You can provide information which shows that you are not an "affected person", in accordance with the COVID-19 Public Health Response (Vaccinations) Order 2021.
You can provide information which shows that your employer has not engaged in a fair and reasonable process, relating to the interpretation of the Vaccinations Order.
You can provide information which shows that your employer has not engaged in a fair and reasonable process, relating to reasonable alternatives to termination of employment.
Your employer is large and has considerable resources for covering staff absence.
Please keep this refined to employment issues only. Your employer is not expected to engage in conversations relating to the efficacy of the vaccine, and they are unlikely to be covered under the New Zealand Bill of Rights Act 1990, as this only applies to acts done:
by the legislative, executive, or judicial branches of the Government of New Zealand; or
by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
If you want to challenge the Vaccination Order itself, you will need to apply at the High Court for a judicial review.
If you do not think you are an "affected person", you will want to lead the Member through the Vaccinations Order:
Section 7 provides that: "An affected person must not carry out certain work unless they are vaccinated."
An "affected person" is defined in section 2, "as a person who belongs to a group (or whose work would cause them to belong to a group)."
These groups are defined in Schedule 2.
You can refer back to section 2 for interpretation (for example, you may want to define "airside" or "excluded person").
You will want to look at Schedule 2, and say why you are not (in fact) in one of those groups.
You should attach all correspondence between you and your employer relating to the Vaccinations Order. It is important that your employer has engaged in a genuine consultation process with you relating to whether, or not, they consider that you are an "affected person."
I usually go through section 103A, and outline whether any of the following have occurred:
whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and
whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
You could also refer to section 4 (good faith), to discuss whether there are any issues:
The duty of good faith requires requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative
The duty of good faith requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of 1 or more of his or her employees to provide to the employees affected
access to information, relevant to the continuation of the employees’ employment, about the decision; and
an opportunity to comment on the information to their employer before the decision is made.
Process: Alternatives to termination
You should attach all information relating to reasonable alternatives to termination of employment. This could include:
Varied terms and conditions of employment or redeployment to a new role.
Using your entitlements to take a period of leave (annual leave, alternative days, long service leave, etc).
Unpaid leave (this will depend on your employers ability to cover your role, as there is a general rule that an employer is not required to hold a role open indefinitely).
The idea is to keep you employed for just long enough for the High Court to conduct its judicial review of the Vaccinations Order.
STEP TWO: Prepare the Memorandum in Support
I have prepared a template Memorandum in Support.
Amend as you see fit: however, this covers the basic outline of the law, and should cover enough basis for your claim.
STEP THREE: Prepare the Declaration
You will need to provide an undertaking of damages.
Wages, salary, annual leave, are not "damages". This undertaking is typically for situations where the employee intentionally, or recklessly, damages the employer's business. If you are on leave, there is a slim chance of this.
You could choose to omit to include this declaration, and instead seek direction of the Authority: however, you will want to then amend the memorandum to remove any reference to this undertaking/declaration.
STEP FOUR: File online
You will then file all applications online.
There is a $71.56 filing fee.
STEP FIVE: Email the ERA
Because you're applying for urgency, I would also recommend that you email the Authority, and CC in your employer, to ensure that urgency occurs.
You should attach the same documents you filed online, plus evidence that the fee has been paid (you should receive an invoice by email).
The relevant emails are:
Tāmaki Makaurau Auckland, email: firstname.lastname@example.org
Te Whanganui-a-Tara Wellington, email: email@example.com
Ōtautahi Christchurch, email: firstname.lastname@example.org
STEP SIX: Self-representing
Well done so far.
What will happen next is that the Authority should schedule an urgent teleconference.
If you receive anything that directs you to mediation, I would recommend you email back and tell them that mediation is not appropriate as it would undermine the urgency sought.
The Employment Relations Authority has provided some information on the case management conference here. I call this an administrative call: with its purpose to usually set some important dates, and ask for relevant information.
The Authority may choose to make a decision "on the papers", but it is most likely that there will be an investigation meeting: even if that meeting occurs by phone or Zoom. The Employment Relations Authority has provided some information on the investigation meeting here.
The Authority is an investigative body. This means that the Member will ask you questions that they think are relevant. You do not need to cross-examine. Trust this process.
The Authority Officers are very helpful, and you can contact them if you have any questions.
If you feel that you need representation, and I am not available, please feel free to take this information to a representative of your choice.
Please also keep an eye out on recent employment law developments. I anticipate that the Authority will have a number of these claims, and each successful case, will increase the odds of success for the next (as we will get more and more information).
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