In brief

• A Court of Appeal ruling struck down the Defence Force COVID vaccine mandate.
• The ruling may open the gate for compensation for anyone mandated out of work  for COVID vaccine refusal.
• The Court rejected “administrative convenience” as a basis for dismissal.
• The government must justify infringing on the Bill of Rights Act.

Impact of the Court of Appeal’s decision on employment mandates

A landmark ruling by the Court of Appeal has potentially opened the door to compensation claims by teachers, health professionals and other public servants mandated out of their jobs for refusing a COVID vaccine.

Thousands of New Zealanders ultimately lost their jobs in 2021 and 2022 for rejecting the vaccine employment mandates.

Last Friday, ten months after hearing the case, NZCA released its ruling on an appeal brought by four defence personnel against the terms of a May 2022 Temporary Defence Force Order (TDFO) that made it possible for New Zealand Defence Force (NZDF) to sack them for refusing the COVID vaccine and/or booster shots.

Defence personnel vs NZDF vaccine mandates

Under their employment contracts, members of the Armed Forces are required to be vaccinated to an approved schedule so that their “readiness” for rapid deployment is maintained. In February 2022 covid booster shots were added to that schedule. 

While dismissal was the ultimate sanction for non-compliance with ordinary vaccines, individual circumstances were normally taken into account and other options explored first.

However, the TDFO in May 2022 made dismissal (what the Order called a “mandatory retention review”) almost a foregone conclusion for refusing a COVID vaccine. The Defence Force told the Court of Appeal it wanted “consistency” in the way it dealt with COVID vaccine refuseniks rather than having to assess each case on its merits as it normally did.

For its part, NZCA said the lower court correctly identified a key issue – the covid vaccines breached the Bill of Rights Act:

“The Judge recorded that it was accepted by the respondents that administration of vaccines amounts to medical treatment for the purposes of s 11 of NZBORA, and that “when a person is faced with the choice of either being vaccinated or having their employment terminated, there is a sufficient imposition on their freedom of choice to engage both the s 11 and s 15 rights.”

“In relation to s 15 rights, the Judge noted that the Court in Yardley accepted that “the right to manifest a religion under s 15 of NZBORA is limited for those who object to vaccination with a vaccine that has been tested using cells derived from a human foetus on religious grounds, but not otherwise”. That was the basis on which the appellants argued that the instruments unjustifiably limited their s 15 rights in the present case.”

Vaccine mandates – Rights, responsibilities, and readiness

When the four affected personnel suggested other workarounds, the employer, NZDF, didn’t consider the suggestions. The Court of Appeal says that was unlawful – the Army had a legal duty to

properly justify why it was breaching the Bill of Rights:

“It was common ground before us that the burden was on the respondents (NZDF) to satisfy the Court that the challenged limitations on the ss 11 and 15 rights were demonstrably justified in a free and democratic society…

“We consider that the TDFO was a material additional limit on the rights protected by ss 11 and 15 of NZBORA. It was for the respondents to show why the flexibility reflected in the NZDF’s normal practice in relation to failure to comply with individual readiness requirements would be inconsistent with the public interest objectives sought to be advanced by the TDFO. We agree with Cooke J in Yardley that administrative convenience is not a sufficient justification.”

Against this backdrop, NZCA also noted expert evidence that the vaccines were next to useless at stopping Omicron transmission, and that at the start of 2023 although only 55 defence personnel risked being sacked because they failed the deployment readiness test on vaccine grounds, more than 5,500 vaccinated troops from a total regular force of just over 9,000 had also failed the readiness test on other grounds – and they weren’t facing the sack. 

Although the judgement was case specific, meaning it turned on its particular facts, it nonetheless sets a wider precedent that the Government and state employers cannot simply trample over the Bill of Rights Act on the grounds of “administrative convenience” – they have to positively prove that their action justifies breaching those rights and cases have to be assessed on their merits.