Covid-19: Sacked border worker didn't give a reason for not having vaccine

Border workers were the first people in New Zealand to be vaccinated against Covid-19, in Auckland on February 20, 2021. (File photo)
Border workers were the first people in New Zealand to be vaccinated against Covid-19, in Auckland on February 20, 2021. (File photo)

A former Customs Service border worker who lost her job for failing to have the Covid-19 vaccine has not publicly said why she refused.

The woman, who cannot be identified for legal reasons, took her case to the High Court in Wellington on Monday, challenging the legality of the vaccine mandate for some workers.

She did not deny the efficacy and importance of vaccinations, her advocate Ashleigh Fechney​ said.

However, Crown lawyer, Austin Powell​, said he did not know her reasons for refusing the vaccine, and the judge, Justice Peter Churchman,​ said her reasons were immaterial to her case.

* Covid-19: It’s not where we’re testing, it’s how and how often
* Vaccines are a legal minefield for employers
* Not one critical border worker has sought a vaccination exemption
* Covid-19: More border workers face job losses for not getting vaccinated

The order for certain border workers to be vaccinated came into force at the end of April. Its purpose was to prevent, and limit the risk of, Covid-19 breaking out or spreading.

Frontline workers were to be vaccinated to do jobs such as work in managed quarantine and isolation facilities, handle affected items in those facilities, affected airports, affected ports, and aircraft.

The woman was working as a border protection officer at a maritime port facility and she lost her job very soon after the vaccine mandate came into force.

Fechney said the woman worked at a small, remote port where no passengers arrived.

She did not say mandatory vaccinations were never justified, but the vaccination order was too wide and did not allow challenges to which roles were safe.

Vaccine or virus? Declining the vaccine is far riskier than having it.

Workers at the supermarket near Christchurch airport were probably more at risk than the woman was working for the Customs Service, she said.

The woman has already protested losing her job, but the Employment Relations Authority upheld the dismissal.

Fechney told Justice Churchman on Monday the normal checks and balances did not occur before a right protected under the Bill of Rights Act – the right to refuse medical treatment – was limited.

The vaccination order was being applied with a heavy hand, she said.

But vaccination orders had not been able to be challenged in the Employment Relations Authority or the Employment Court, and overrode normal avenues of employment relations consultation, Fechney said.

Powell defended the way the order was put in place, signed off by Associate Minister of Health Dr Ayesha Verrall​ after Covid-19 Response Minister Chris Hipkins​ made the order but was not available to execute it.

He said the power for ministers to make orders was extraordinary, but these were extraordinary times which might interfere with the ability of parliament itself to function.

Parliament had to endorse the order for it to last beyond a limited time.

The only issue for the court to decide was whether the minister’s action in making the order was reasonable, and plainly it was, Powell said. The government had a responsibility to protect New Zealanders, particularly the most vulnerable, from an external threat.

But Fechney said it was not a matter of choosing between protecting against Covid or protecting from abuse of power. It had to be both, she said.

The Crown accepted that there was an element of coercion when frontline workers were faced with having the vaccine or losing their jobs.

Associate Minister of Health Dr Ayesha Verrall signed off the mandatory vaccination order. (File photo)
Associate Minister of Health Dr Ayesha Verrall signed off the mandatory vaccination order. (File photo)

The right to refuse treatment was not infringed if the limitation to the right was justified, Powell said.

The woman’s concern was with the consequences of refusing medical treatment, and the employer saying, “We don’t have anywhere else to deploy you”.

At an earlier stage of the case, Justice Churchman said the woman wanted to be anonymous because she thought she would suffer “public opprobrium” from certain people if she was identified.

In support of the application for the woman not to be identified, Fechney said the woman brought her case as a representative for all affected people, and she should not become a lightning rod for “anti-vaxxers”.

The case was heard at short notice because the court was told that on September 30 other people would be affected by the same rule.

The judge reserved his decision. It was a significant issue for society generally, as well as the parties, he said.