Until now, I have focused my writings on employees affected by the Vaccinations Order. This is because the first two Vaccination Orders predominately applied to government bodies and large corporate employers. Those employees were the inherently vulnerable party.
However, with the third Vaccinations Order affecting small to medium employers, and with the looming vaccinations certificates, it's time we discuss the vulnerability of small to medium business owners.
This article is essentially a collation of Facebook posts, and I recommend following my Facebook for similar discussions on these issues.
Legal Risk Assessment
When I provide a contrary interpretation of the Vaccinations Order, I am often met with: "The official advice of the Ministry of Health is that XYZ."
Perhaps this is a good time to remind employers that during the first lockdown, MBIE's advice to employers who received the Wage Subsidy only needed to pay their employees 80% of their wages.
... Even though the Wage Subsidy wasn't a law ...
I remember writing a post saying: MBIE won't represent you in the Employment Court. Stop blindly taking their advice. Parliament's job is to make law. The Court's job is to interpret and apply it. Get your legal advice from lawyers.
We now know that MBIE's advice was wrong. Unsurprisingly, the Wage Subsidy did not displace or override the Wages Protection Act 1983 or the Employment Relations Act 2000 or the Individual Employment Agreement. It was found that employers could only pay their employees less than 100% of their wages if there was agreement between the parties.
Those employers are now being sued for wage arrears by ex-employees. It's pretty sad that those employers who were desperately trying to operate during the first lockdown, are now closing because they can't pay the sums ordered by the Employment Relations Authority / Employment Court. I can guarantee it would have been cheaper to get legal advice in the first instance.
... MBIE is no where to be seen ...
Here we are again. If you are an employer, you should be carefully considering your position. If you are dismissing employees, you will wear that risk yourself. Ministry of Health (or others) will not represent you. They will not pay the remedies in any personal grievance.
It is absolutely vital you seek legal advice, and conduct a legal risk assessment on your position.
If you dismiss an employee under the Vaccinations Order and they raise a personal grievance because you've interpreted it incorrectly, you're looking at paying the equivalent of three month's wages, compensation for hurt and humiliation (average $15,000) and a contribution to their legal fees (approximately $4,500).
If you do not dismiss an employee, and it is found that they were covered under the Vaccinations Order, you commit an "infringement offence" which means you are currently liable to an infringement fee of $300 or a fine imposed by the court not exceeding $1,000. Parliament is seeking to pass an amendment to the COVID-19 Public Health Response Act 2020 which would increase those fees, however, you must conduct your risk assessment with what you have at the time.
Perhaps to use another example: if you do not pay your employee their notice period, that employee has a six-year window to make a claim for breach of individual employment agreement, breach of Wages Protection Act 1983, breach of Minimum Wage Act 1983, and breach of any other statute or agreement they can put together in a letter.
Their notice period may cost you: but you'll pay more than that just to be seen by a lawyer.
Liability Arising from External Funders
There are a number of employers who are required to terminate their employee's employment, because the external funders are refusing funding. This is evidently the case with regards to family carers and family nominated carers (see my blog post for employees here).
In the first instance, this directly interferes with the rights and obligations contained within the Employment Relations Act 2000. The employer is unable to act fairly and reasonably in the circumstances, because their ability to seek independent legal advice has been cut at the knees. Without funding, the practical reality is that the employer cannot continue the employee's employment. It doesn't matter if their independent legal advice is that their employee is not an "affected person", the funder has made that decision for the employer.
However, the employer is liable for a personal grievance, and it breaks my heart to say this: I will be assisting these employees in raising personal grievances. I will be raising these personal grievances, and will be joining the funder as a controlling third-party. If you are an employer, the best you can do is write to the company/organisation who is withholding funding, and seek a guarantee that they will take full responsibility for any personal grievance that is raised, and that they will pay your legal fees.
There is nothing in the Vaccinations Order which gives those funders the right to cease funding. The "relevant PCBU" is defined as "the PCBU who employs or engages an affected person to carry out certain work." The funder does not employ or engage your employee. They provide you with the funding, and you employ or engage the person. Their decision to cease funding makes them a controlling third-party. It opens the argument for a triangular relationship.
Legal Liability for Vaccination Certificates
The bleak reality is that small to medium employers are about to wear the cost of these Vaccinations Orders. Lawyers and legal representatives cannot confidently advise employers without binding judicial precedent. Small to medium businesses who cannot afford specialist legal advice, rely on binding judicial precedent, to guide them in conducting fair and reasonable processes.
Creating precedent has been at the core of every vaccination case I have progressed: however, I am only one person. While precedent of the Employment Relations Authority holds some weight, the Authority is not bound by its own decisions: meaning that precedent is required at the Employment Court.
It is only once there is binding precedent, that small to medium employers have some certainty as to process. It is only once there is binding precedent, that the aim of reducing judicial intervention is achieved.
It takes more than one case, with one employer, with one set of facts.
The Wage Subsidy has created a six-year liability period for all employers who failed to pay their employees in accordance with the agreed terms and conditions of employment. Those employers who sought the aid of the Wage Subsidy during the first lockdown to avoid liquidation, are now facing the prospect of liquidation, following claims for breach of individual employment agreement, breach of Wages Protection Act 1983 and breach of Minimum Wage Act 1983.
This is history repeating itself.
The least we could have done, as servants of the judiciary, was to have progressed those matters in a way which respected the fundamental obligations of legal representatives, and the purpose of the Employment Relations Act 2000. The judiciary cannot administer justice without the facilitation provided by representatives.
The purpose of the Employment Relations Act 2000 is to prevent judicial intervention. This must be considered at a much higher level than simply between the parties. As was stated by Chief Judge Christina Inglis: “the point is that for every problem solved by the Court, several others are solved in the shadow of the Court’s intervention."
Unfortunately, I fear that the Court's intervention will come too late for small to medium businesses, who will soon be faced with vaccination certificates, and who will soon carry a significant legal liability.
You are stuck between a rock and a hard place, and no one can say I didn't try. Some cases didn't progress with urgency. Some weren't removed to the Employment Court in the first instance. They were struck out. I've been doing everything I can: but I am only one person.
The legal profession and institutions have failed you.
You will now pay the legal profession for their representation.
Conclusion
Small to medium employers are meant to be the backbone of our economy. However, for those who survived the first lockdown, they now face the next hurdle: vaccine certificates.
What are you going to do about it?
Who is standing in your corner, fighting for your rights?
It's time we abandon unions and stand for class consciousness: because employees can band together with small to medium employers. If we consider the bigger picture, there is a common goal, and a common 'enemy.' You've all been wronged by the same people: the "elite" (for lack of a better word).
And it's employees and small to medium businesses who will be disproportionately affected.
This isn't about vaccines. This is about power: and unfortunately, you don't have it ... but we could.
Legal AF Limited t/a Ashleigh the Advocate
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