Thank you for your patience as we continue to review and update our forms, templates, guidance, and other information following the lifting of the COVID-19 vaccination updates. In the meantime, our Advisory and Support Centre is available to discuss any governance or employment matters on 0800 782 435, or alternatively by email  – eradvice@nzsta.org.nz  (for employment advice) or  govadvice@nzsta.org.nz  (for governance advice).

NZSTA Board Matters - Termination Package


24 November 2021

Board Matters

Termination process for an employee who is not vaccinated and consultation has taken place

COVID-19 Vaccination Order – termination process guidance for School Principals and Boards

This guidance is intended to support schools to implement the COVID-19 Public Health Response (Vaccinations) Order 2021 (Order), which took effect at 11.59pm on 25 October 2021.

This guidance is intended to assist Principals and Boards in working through an employment process that could lead to the termination of employment of unvaccinated employees whose work is covered by the Order. The guidance follows the process flowchart that has been issued by the Ministry of Education but provides some greater detail on the specific requirements.

Schools have a duty to notify all workers of the requirements of the Order, and to receive and compile information in a vaccination register as to the vaccination status of workers. Through that exercise, schools will be aware of workers who are not vaccinated.

The Order requires employees who carry out work at or for a school who:

  • may have contact with children or students while carrying out that work, or
  • will be present at the affected education service while children or students are also present,

to have received their first approved Covid-19 vaccination before the close of 15 November 2021, and their second approved Covid-19 vaccination before the close of 1 January 2022. If an employee has not received their first and/or second dose of the Covid-19 vaccine, and as a result the employee is unable to carry out work at the school, the school may be able to terminate that employee’s employment after having followed a fair process.

Schools must still ensure that they meet their obligations under the Employment Relations Act 2000 and relevant employment agreements. This guidance is designed to assist with this process.

Schools must be fair and reasonable and act in good faith at all times when considering termination of employment. A dismissal must be carried out in a procedurally fair manner.

Schools must:

  • set out in writing to the employee the basis on which the employer is considering termination of employment, i.e, that as the employee has not been vaccinated, they cannot be present at school when students are present or undertake work that may involve contact with students. As their role requires them to be onsite when students are present and/or may involve contact with students, they can no longer carry out their role;
  • provide an employee a reasonable opportunity to respond and arrange a meeting to hear feedback from the employee.
  • try and identify any suitable alternative working arrangements or redeployment opportunities for the employee, which do not involve the employee needing to be present at school when students are present or that may involve contact with students;
  • genuinely consider any feedback or explanation provided by the employee;
  • after considering the employees feedback and if there are no suitable alternative working arrangements or redeployment opportunities a decision to dismiss can be reached.

After having identified that an employee is unvaccinated and does not intend to be vaccinated, the key steps to be followed in giving effect to the Order are set out below:

  1. Initiate a formal employment process to seek feedback from the employee about the impact the employee’s decision to not get vaccinated could have on the employees’ ongoing employment, as the employee would not have been permitted to perform their role onsite after 15 November 2021.
  2. Schools must keep an open mind, genuinely consider the employee’s feedback, and genuinely consider alternative options and working arrangements.
  3. The principles of natural justice should be followed.  A letter must be provided to the employee which:
  • sets out the reasons why continuing to work in their role would mean the employee is in breach of the Order, and cannot carry out duties at the school;
  • arranges a meeting to hear the employee’s feedback and allows the employee reasonable time to respond;
  • advises the employee of their right to representation or legal advice;

Meeting with the employee

Once the employee has been advised in writing the basis on which the employer is considering termination of employment, i.e, that as the employee has not been vaccinated they cannot be present at school when students are present or undertake work that may involve contact with students, a meeting should be arranged with the principal (or board, depending on delegations) to hear the employee’s feedback. At the meeting you should:

  1. outline the purpose of the meeting and advise the School is considering terminating the employee’s employment on the basis they have not been vaccinated;
  2. outline the process undertaken to date, including any previous conversations with the employee about the impact of the Order on their role;
  3. invite the employee to respond and provide feedback;
  4. if the employee wants to, explore the reasons why the employee does not wish to be vaccinated (noting they do not have to share their reasons if they don’t want to);
  5. ask any questions you need to, to clarify or understand the employee’s response;
  6. outline considerations or possible suitable alternative working arrangements or redeployment and discuss these with the employee;
  7. ask the employee if the employee has thought of any possible suitable alternative working arrangements;
  8. conclude the meeting by thanking the employee for attending, advise you will consider the feedback provided, advise a final decision will be communicated in writing, and if you can, give a timeframe on when this might be.

Making the decision and informing the employee

The school should genuinely consider the employee’s feedback before reaching a decision.
Other factors to be considered before reaching a decision to dismiss include:

(a) Is the employee aware of the Order and its impact on their ongoing employment?
Ensure that the employee is aware that their work is covered by the Order. Ensure that they have been provided with the relevant information in relation to it, and that they have had their questions answered.

(b) What are the reasons for not being vaccinated?
What their intentions are to be vaccinated and, if so, when? You can discuss with the employee why they do not want to be vaccinated if the employee wants to, but an employee does not have to share this with you. Schools must deal with each employee on a case-by-case basis.

(c) Are there valid grounds for a medical exemption?

There is a centralised process for obtaining a medical exemption. A suitably qualified medical or nurse practitioner can apply to the Director General of Health for a medical exemption on behalf of a person and there are specified criteria. If satisfied, on the basis of the evidence or other information, that the person meets the specified exemption criteria, the Director-General may grant the application.

For further medical exemptions, advice and guidance, please refer to our website.

(d) Are there any suitable alternative working arrangements or redeployment opportunities that do not involve the employee being at the school at a time that students will be present and/or that may involve contact with students?

If the employee has not been vaccinated as required by the Order and there are no suitable alternative working arrangements or redeployment opportunities the employee will be given notice of termination of their employment.

NZSTA termination template letter is attached and can be used, once a correct process has been followed.

When the decision to terminate employment is made, the employee should be engaged within a respectful manner, maintaining dignity and mana at all times. 

Delegations

You should check any policies your school has in place about what delegations the principal has in relation to termination of employment.

Please note that the delegation may be different depending on whether the employee is teaching staff or a non-teaching staff member.

Where the Principal has delegated authority

Where the principal has clear delegated authority to terminate a staff member, then the principal can carry out the process set out above.

Where the board alone has powers to terminate an employee

Where the board alone has powers to terminate an employee, the board should follow its existing policy and procedures for considering termination of employment.

Please note:

Some employees who are opposed to getting vaccinated will raise objections and are likely to lodge a personal grievance (PG) if they are dismissed.

To reduce the potential liability of the school/board, before dismissing anyone it is vital that you ensure the school has followed the appropriate steps and has adequate documentation to evidence the processes are undertaken, to ensure that the process that the school has followed is appropriate.

If you receive notification of a personal grievance (PG), please email us immediately, at eradvice@nzsta.org.nz and make sure that you have attached a copy of the PG letter, copies of all your correspondence and related notes as well as any other relevant information. We recommend you notify your insurer.

It may affect your ability to claim on the school’s policy of insurance if NZSTA or an approved provider is not consulted prior to dismissing an employee for their refusal to get vaccinated / to confirm their vaccination status.

 

Scroll Arrow Icon

© 2018 New Zealand School Trustees Association