A New Zealand truck driver who was fired from his job for refusing to get a COVID-19 vaccination has been awarded nearly $29,000 (US$17,700) by the Employment Relations Authority for unjustified dismissal.
Wayne Basher was formerly a linehaul driver with Big Chill Distribution Limited based in Hastings in Hawkes Bay. Mr. Basher had worked for the company since 2011 and has been recognised by the company for his efforts as a driver.
The company, which employs over 5,000 people, implemented a mandatory vaccination policy for all staff, regardless of role, in December 2021. The company provided incentives to staff that included cash payments and lottery tickets to encourage uptake of approved COVID-19 vaccines.
Big Chill’s internal vaccination policy was broken when Mr. Basher decided not to receive a COVID jab. He was terminated on Jan. 24, 2022, the same day New Zealand was elevated to the Red Alert COVID response setting which specified the disease, in this case, the Omicron variant, had penetrated the community with widespread outbreaks.
By not getting vaccinated, Mr. Basher had breached the terms of his contract. Still, he argued his role as a line-haul driver was sole charge, had limited public interaction, and that the depots that he visited to unload goods were vast enough that adequate separation from other workers was ensured.
Mr. Basher also claimed that Big Chill did not follow a fair a reasonable process, accusing the company of coercing employees into getting jabbed.
Risk of Assessment Reasonable: Judge
In defending the claims, Big Chill told the Authority they were “substantively justified” in firing Mr. Basher as his job was considered high risk.However, adjudicator Natasha Szeto ruled Big Chill had ignored Mr. Basher’s request for an in-depth health and safety assessment that would determine whether said risk existed.
Ms. Szeto ruled that ignoring the request was “not a step that a fair and reasonable employer could take,” commenting that an individual risk assessment should have been taken out.
“Given the downstream consequences on Mr. Basher’s employment, I consider a fair and reasonable employer could have genuinely engaged with him on the risk assessment, even in the context of a business that was continuing to respond to the impacts of a global pandemic,” she said.
As an alternative to being terminated, Ms. Szeto also ruled that Big Chill could have offered a period of leave to Mr. Basher saying, “I have found that Big Chill did not follow a fair and reasonable process in terms of the risk assessment for Mr. Basher’s role, nor did it consider leave as a reasonable alternative to termination.”
“It follows that Big Chill unjustifiably dismissed Mr. Basher from his employment.”
The settlement awarded to Mr. Basher was made up of $15,000 compensation for humiliation, loss of dignity, and injury to his feelings, and three months of lost wages totalling $13,967.
