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TEMPLATE: Personal Grievance (Vaccination Policy)

Updated: Jul 27, 2022


Below is a template personal grievance for employees whose employment has been terminated, as a result of a company-imposed vaccination policy.


This template is aimed to assist employees in securing their legal position, by raising a personal grievance within the 90-day timeframe. Once the personal grievance has been raised, an employee has 3-years to progress it to the Employment Relations Authority.


This template has a number of options which may not be applicable to every employee. Please ensure you read the relevant sections, and determine which is the best for your situation. If you have additional claims, you are welcome to add this to the letter: a "personal grievance" is a letter, and you can raise other claims within the same letter (for example, a claim for breach of contract: see my arguments on redundancy here).


The purpose of the personal grievance, at this stage, is to progress to mediation (either by agreement or by direction). Before progressing to a personal grievance, please first read about the process. If you need further information on how to progress the personal grievance, please have a look at the templates available on my website.


I am providing this template for use for free as I don't want cost to be a barrier to access to justice. However, please consider your resources to make a contribution, which will allow me to produce more free-to-use content.


DISCLOSURE: Please read the disclosure which was provided on one of my other templates. In summary, in using this letter, you acknowledge that this was done as your own choice, and at your own risk.

 

Legal AF Limited t/a Ashleigh the Advocate

03-0767-0043225-000

Help me, help others: your contributions allow me to continue creating substantial blog posts like these.

 

[DATE]


[Company name]

[Address 1]

[Address 2]

[Address 3]


Attn: [name]

By email: [email]


Personal Grievance - [Your name]

  • Please consider this letter as notification of personal grievance for unjustified dismissal, in accordance with section 103(1)(a) of the Employment Relations Act 2000. I believe that my employment was terminated in circumstances that were neither fair nor reasonable.

  • I also believe that I have been unjustifiably disadvantaged, pursuant to section 103(1)(b) of the Employment Relations Act 2000, in that I was suspended in circumstances that were unfair and unreasonable.

  • I feel that [company name] breached its obligations of good faith, pursuant to section 4 of the Employment Relations Act 2000, in that it failed to be active and constructive in maintaining the employment relationship.

  • The remainder of this letter outlines my claims.

Background

  • You may want to provide an outline of the facts. This is especially important if you are seeking to challenge the process, or otherwise claim that the process was unfair.

Unjustified Dismissal: Vaccination Policy (employer's policy)

  • My employment was terminated as a result of a vaccination policy.

  • The health and safety risk assessment which supported the vaccination policy was created in [DATE]: prior to the challenges that the Omicron Variant carries.

  • It is my view that any health and safety risk assessment should clearly identify the risks associated with my status as being a person who is not vaccinated. That means the following risks should have been considered separately:

    • The risk of me contracting COVID-19; and

    • The risk of the outbreak or spread of COVID-19, as a result of my status as being a person who is not vaccinated.

  • We now know that the Omicron variant presents new challenges, most notably with respect to vaccine efficacy. New Zealand’s vaccination rates are amongst the best in the world: with over 95% fully vaccinated. Notwithstanding this, our recent case numbers are exceeding 20,000 new community transmissions per day.

  • It is acknowledged that there is a greater risk of me contracting COVID-19 because of my status of being a person who is not vaccinated. However, in considering the recent statistics, my risk of transmission does not appear to be substantially greater than a person who is vaccinated. However, it is acknowledged that there are greater risks of worse health outcomes for people who are not vaccinated.

  • In saying that, I have always accepted personal responsibility for my health and safety while in the workplace. Any vaccination policy must be based on the risks of the outbreak or spread of COVID-19, and not the risks present to me of contracting COVID-19. This is consistent with the New Zealand Bill of Rights Act 1990. Sir Geoffrey Palmer, who introduced the New Zealand Bill of Rights Act 1990 provided that if the right to refuse medical treatment were to be limited:

… it is anticipated that this would permit persons to be treated against their will only where this is necessary to protect the health and safety of other persons, and not simply where their refusal of treatment will detrimentally affect their own health.

  • In considering the risk of the outbreak or spread of COVID-19, as a result of my status as being a person who is not vaccinated, emerging data suggests that vaccination does not significantly impact the rates of transmissibility once infected. However, notwithstanding this, in considering New Zealand’s remarkably high vaccination rate of 95%, this provides a sufficient level of protection against COVID-19.

  • This means that it is likely that the vaccination policy would not be justified long-term: a message which was recently echoed by the Prime Minister with respect to the COVID-19 Public Health Response (Vaccinations) Order 2021.

  • It is my view that it was unfair and unreasonable to terminate my employment as a result of a vaccination policy, which impedes on the rights and freedoms of the New Zealand Bill of Rights Act 1990, in circumstances where the vaccination policies are unable to meet their purpose.

Unjustified Dismissal: Vaccination Policy (third party policy)

  • My employment was terminated on the basis that [third-party company] have adopted an organisation-wide vaccination policy, which affects visitors, volunteers, contractors, and the like.

  • While I appreciate that I am not employed by this company, its policy has had the impact of interfering with the employment relationship.

  • In accordance with the Employment Relations Act 2000, an employer must ensure that all reasonable alternatives that would not lead to termination of the employee's employment agreement have been exhausted.

  • This means it is not enough to 'consider' whether there are reasonable alternatives available, an employer must exhaust that option: indicating an expectation that where a reasonable alternative exists it ought to be, at least, tried.

  • It is my view that the obligation of good faith required you to engage in active and constructive conversations with [third-party company] to ensure that my interests as an impacted employee were best represented: which would include an understanding of my health and safety concerns.

Unjustified Dismissal: Reasonable alternatives

  • In accordance with the Employment Relations Act 2000, an employer must ensure that all reasonable alternatives that would not lead to termination of the employee's employment have been exhausted.

  • This means that it is not enough to 'consider' whether there are reasonable alternatives available, an employer must exhaust that option: indicating an expectation that where a reasonable alternative exists it ought to be, at least, tried.

  • My role was role that could be successfully completed on an at home basis. While I appreciate [company name]'s position that working from home was not a permanent solution, I do not consider that you adequately 'exhausted' this option:

    • My role could be successfully completed while working on an "at home" basis. I believe I could demonstrate that my productivity would not be affected, my relationships with staff would be maintained, and my wellbeing would not suffer as a result of working from home.

    • I was able to successfully meet with people by telephone or video conferencing, rather than "in person." Where there is a requirement to meet in person, I could have used a third-party location that did not require a COVID-19 vaccination certificate.

    • Working from home is the preferred way of working under the "red" setting of the Protection Framework. With daily case numbers currently above 20,000 per day, it was in everyone's interests to adopt a working from home arrangement, as this would have been the best protection against the Omicron Variant.

  • I appreciate that it wasn't possible for me to work from home indefinitely, however, I believe that I should have been offered a working from home solution on a temporary basis. This would have allowed us more time to understand the Omicron Variant, and to monitor the Government's approach to vaccination restrictions.

Unjustified Disadvantage: Suspension

  • It is my view that it was unfair and unreasonable to suspend me for a period of [TIME].

  • There was no justified basis for the suspension: while the health and safety risk assessment had occurred, the vaccination policy had not been determined.

  • I feel that the decision to suspend me amounted to a predetermination. I wasn't welcome on site and I knew that I was not going to be allowed back on site.

Next steps

  • For the reasons above, I believe I have a personal grievance, and I am entitled to remedies. I am seeking lost wages, compensation for hurt and humiliation, and a contribution towards any legal fees I might accrue.

  • I understand that we have an obligation to attempt to resolve the matter by using mediation services, as offered by the Ministry of Business, Innovation and Employment.

  • Please confirm your agreement to attending mediation.

  • I look forward to receiving your response.



[Signature]

[Name]


 
 

Legal AF Limited t/a Ashleigh the Advocate

Help me, help others: your contributions allow me to continue creating substantial blog posts like these.

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