WXN v Auckland International Airport Ltd [2021] NZEmpC 205 - interim reinstatement granted on challenge

The Employment Relations Authority had declined WXN's application for interim reinstatement. On a de novo challenge, the Employment Court reached the opposite interim result and reinstated him pending determination of the substantive employment dispute.

Background

WXN was a long-serving senior mechanical maintenance technician at Auckland International Airport. His employment ended after he did not become vaccinated as required for the work he was performing under the then-applicable COVID-19 border regime.

He sought interim reinstatement while his personal grievance was determined. The Authority declined that application, so he challenged the interim decision in the Employment Court.

Why the Court reached a different interim result

The Court considered that WXN had a seriously arguable substantive case. Among the matters requiring proper examination was whether the employer had adequately and constructively considered alternatives which could preserve the employment relationship.

The Court also considered the balance of convenience and overall justice. Because the vaccination setting meant WXN could not simply return to his ordinary physical duties, the reinstatement order was structured around maintaining the employment relationship while the underlying dispute was progressed.

The practical order

The Court granted interim reinstatement. The order contemplated a period of paid leave and then unpaid leave pending further determination, rather than immediate physical return to the workplace. Mediation was also directed.

What the case does not decide

Interim reinstatement judgments are deliberately provisional. The Court did not finally determine the personal grievance. The significance of [2021] NZEmpC 205 is that the ERA's interim refusal was reversed and that the Court considered there was a sufficiently arguable case, together with a favourable balance of convenience, to preserve the employment relationship in the meantime.

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Source: Employment Court judgment and related public material.