I have been passionate about bringing justice to unvaccinated family carers since the Vaccination Order was amended to include "care and support workers." If you'll remember, on 11 November 2021, I wrote an open source letter for family carers to assist them in their discussions with their employer. Unfortunately, this letter did little to persuade employers that family carers should not be interpreted to be covered under the Vaccination Order, and we were required to develop these claims and bring them to the Employment Relations Authority and the Employment Court.
Exactly eight months later, on 11 July 2022, the Employment Court held that family carers who live with the people they provide cares for are not required to be vaccinated in accordance with the Vaccination Order. It had been a long eight months, however, we were pleased to finally see some justice for family carers like CSN and their families.
In this case, CSN was employed to provide cares for her adult son (who lives with her), however, in November 2021 her employment was terminated because she was not vaccinated. She continued to provide cares to her son after the termination of her employment, and the Employment Court held that as she continued to "work" she actually continued to be an employee of Royal District Nursing Service New Zealand Limited.
You can read the case here: CSN v Royal District Nursing Service New Zealand Limited
Since the release of this case, I have helped other family carers back into employment. While I have been offering to do this on a "No Win, No Fee" basis, I recognise that there are family carers who are uncomfortable about engaging legal representation, and who would prefer to resolve the matters themselves. I still want to help these people, and I've therefore published a range of templates to assist unvaccinated family carers. In this document I have templates for:
Family carers who were previously employed, and who continued to provide cares after the termination of their employment.
Family carers who were previously employed, and who did not provide cares after the termination of their employment.
Family carers who received individualised funding and who only seek reinstatement.
NOTE: These templates are only applicable to family carers who live with the person they provide cares for.
This template is the first step to raising a claim, and to starting discussions to reach a resolution. In terms of the process, you can read about it in my blog post here.
You can additionally access some tools for preparing for mediation here.
The purpose of this document is to assist you in getting to mediation: however, if you wish to progress to the Employment Relations Authority or the Employment Court I would recommend that you seek legal advice, as there are different legal avenues for each situation. For employees, or carers receiving individualised funding wishing to claim they are employees, I am offering legal aid, "No Win, No Fee" and pro bono solutions: please don't hesitate to reach out.
Employee: Personal Grievance
These templates are applicable for family carers who were previously employed by a company to provide cares to a person they live with, and who wish to raise a personal grievance for the termination of their employment. If you only seek reinstatement (and no financial remedy), you might be better using a modified version of the template for individualised funding.
Template for family carers who continued to provide cares after the termination of their employment
Good Morning/Afternoon [NAME].
I write to raise a personal grievance for unjustified dismissal and/or unjustified disadvantage, in accordance with section 103(1)(a) and/or 103(1)(b) of the Employment Relations Act 2000. I was not an "affected person" for the purposes of the COVID-19 Public Health Response (Vaccinations) Order 2021 ("Vaccinations Order"), and therefore the termination of my employment was unfair and unreasonable.
In transparency, I have had legal assistance in drafting this letter.
My employment was terminated [DATE]; however, I was not aware that the termination of my employment amounted to a personal grievance until the Employment Court judgment of CSN v Royal District Nursing Service New Zealand Limited, which held that caregivers like myself are not affected people for the purposes of the Vaccinations Order:
"… were this definition to apply to a care and support worker living with a disabled person such as CSN, the worker could, if not vaccinated, be unpaid for their services. This would be the case even though it would be foreseeable that such a worker might well have to continue performing their essential duties.
I accept Ms Fechney’s submission that, on the face of it an interpretation which leads to this result is absurd and cannot have been intended."
The Employment Court additionally held that notwithstanding the notice of termination, CSN continued to provide cares, and therefore continued to be an employee of Royal District Nursing Service New Zealand Limited:
In summary, all relevant indicia point to the fact that the employment relationship continued. CSN was working in accordance with the terms and conditions of her IEA. She reasonably expected to be paid by RDNS. But for its incorrect interpretation of the Vaccinations Order, it would most likely have done so. Having regard to these realities, I am satisfied that RDNS continued to be CSN’s employer.
The judgment was published on 11 July 2022, and it is my view that, in accordance with section 114 of the Employment Relations Act 2000, the 90-day period begins on that date. This is when I became aware of my grievance, as prior to this, I had believed your correspondence that said I was an affected person.
I am interested in progressing my claims in a similar manner to CSN, which would include a section 6 application to the Employment Court for a declaration of employment status. I believe that my situation is similar to CSN:
- I am not vaccinated
- I was previously employed to provide cares to [PERSON]
- I live with [PERSON]
- I have continued to provide cares for [PERSON] even following the termination of my employment.
Therefore, similarly with CSN, it would be an absurdity if I were an affected person for the purposes of the Vaccinations Order. However, before making a formal application to the Employment Court, I'd like to attempt to resolve the matters without the time, stress and costs associated with litigation. I would therefore welcome the opportunity to attend mediation, as provided by the Ministry of Business, Innovation and Employment.
In the first instance, as an immediate remedy, I would like to be formally reinstated to an employee on the same terms and conditions as I held previously. It is important that this occur promptly to avoid further disadvantage.
Secondly, as remedy to my personal grievance, I seek reimbursement of wages between the date of my termination and the date of my reinstatement, and compensation for the hurt and humiliation I've suffered through this process.
I look forward to receiving your response.
Sincerely,
[NAME]
Template for family carers who did not continue to provide cares after the termination of their employment
Good Morning/Afternoon [NAME].
I write to raise a personal grievance for unjustified dismissal and/or unjustified disadvantage, in accordance with section 103(1)(a) and/or 103(1)(b) of the Employment Relations Act 2000. I was not an "affected person" for the purposes of the COVID-19 Public Health Response (Vaccinations) Order 2021 ("Vaccinations Order"), and therefore the termination of my employment was unfair and unreasonable.
In transparency, I have had legal assistance in drafting this letter.
My employment was terminated [DATE]; however, I was not aware that the termination of my employment amounted to a personal grievance until the Employment Court judgment of CSN v Royal District Nursing Service New Zealand Limited, which held that caregivers like myself are not affected people for the purposes of the Vaccinations Order:
"… were this definition to apply to a care and support worker living with a disabled person such as CSN, the worker could, if not vaccinated, be unpaid for their services. This would be the case even though it would be foreseeable that such a worker might well have to continue performing their essential duties.
I accept Ms Fechney’s submission that, on the face of it an interpretation which leads to this result is absurd and cannot have been intended."
The judgment was published on 11 July 2022, and it is my view that, in accordance with section 114 of the Employment Relations Act 2000, the 90-day period begins on that date. This is when I became aware of my grievance, as prior to this, I had believed your correspondence that said I was an affected person.
I believe that my situation is similar to CSN:
- I am not vaccinated
- I was previously employed to provide cares to [PERSON]
- I live with [PERSON]
Therefore, similarly with CSN, it would be an absurdity if I were an affected person for the purposes of the Vaccinations Order. However, before making a formal application to the Employment Relations Authority, I'd like to attempt to resolve the matters without the time, stress and costs associated with litigation. I would therefore welcome the opportunity to attend mediation, as provided by the Ministry of Business, Innovation and Employment.
In the first instance, as an immediate remedy, I would like to be formally reinstated to an employee on the same terms and conditions as I held previously. It is important that this occur promptly to avoid further disadvantage.
Secondly, as remedy to my personal grievance, I seek lost wages and compensation for the hurt and humiliation I've suffered as a result of this process.
I look forward to receiving your response.
Sincerely,
[NAME]
Individualised Funding: Reinstatement Only
This is a template for carers who are not employed by an agency, but who are rather employed by a family member through the individual funding scheme.
Template for IF family carers who only want reinstatement
Good Morning/Afternoon [NAME].
I write to inform you that I am not an "affected person" for the purposes of the COVID-19 Public Health Response (Vaccinations) Order 2021, and therefore seek confirmation that I am able to provide paid cares to [NAME]. On 11 July 2022, the Employment Court held that caregivers like myself are not affected people for the purposes of the Vaccinations Order:
"… were this definition to apply to a care and support worker living with a disabled person such as CSN, the worker could, if not vaccinated, be unpaid for their services. This would be the case even though it would be foreseeable that such a worker might well have to continue performing their essential duties.
I accept Ms Fechney’s submission that, on the face of it an interpretation which leads to this result is absurd and cannot have been intended."
I have attached this case to my email. I believe that my situation is similar to CSN, as I am not vaccinated, and I live with the person I provide cares to.
I look forward to receiving your response.
Sincerely,
[NAME]
IF family carers who want backpay and/or compensation
If you want to claim reimbursement of lost wages, there are two options available depending on your situation:
You could make an application to the Employment Court that you are an employee of Ministry of Health / ACC. There are two examples of where this has happened: Humphreys and Fleming. I have not created a template for this due to the complexity of the situation, and I would recommend you seek legal advice specific to your circumstances before raising this claim.
You could raise a personal grievance against the agent of the IF funding, and make an application to join the company who controls the funding. Putting this in context, if the child receives individual funding, but the husband is the "agent' (and arguably the employer) we would raise the personal grievance against the husband, but then join the controlling third party who is withholding funding for unvaccinated carers.
It is somewhat complicated, however, that's no barrier for me: if you're interested in pursuing either course of action, please contact me.
Conclusion
These templates aren't perfect: it's difficult to make the perfect template when each situation is factually unique. However, these templates cut to the heart of the matter, and should assist you in starting conversations. If you need additional assistance, or you are unsure about your situation, please do not hesitate to contact me.
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Legal AF Limited t/a Ashleigh the Advocate
03-0767-0043225-000
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