Covid-19 case law: What we have learnt so far

• Published date: 27 January 2022
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Employment and Workforce Wellbeing
• Law Firm: Cavell Leitch
• Author: Ms Sophie Logie and Kendal Cosgrove

Over the last 18+ months, the Employment Relations Authority and Employment Court have made an increasing number of employment law decisions related to COVID-19. With the recent change to the traffic light system, it is now more important than ever for employers to reflect on these decisions, and to remain mindful of the key learnings. To make it easy, we have summarised key decisions in the table below, and will continue to update this as the situation develops.

Importantly, we are yet to see a decision as to whether requiring employees to be vaccinated is justified in workplaces not covered by a government Order. However, we expect that this area will be addressed by the Authority in the near future.

Raggett v Eastern Bays Hospice Trust [2020] NZERA 266.

June 2020

Changes to wages

During the 2020 Alert Level 4 lockdown, the employer advised retail employees that they would be paid 80% of their wages until its stores could reopen. The employer subsequently conducted a restructure, and the employees' roles were disestablished. The employer advised that the first half of their notice period would be paid at 80% of their wages, and the second half would be the wage subsidy only.

The Authority found that employers cannot reduce an employee's pay rate or notice period unless the employee has been consulted with and / or agreed to that change. In the absence of consultation and agreement to vary the terms of the notice period, the employer did not have a legal basis to reduce normal wages or salary under the employment agreement during the notice period.

Further, any arrangements in place around wages while employed, does not necessarily extend to payment of the notice period.

De Sousa v Bayside Fine Foods [2021] NZERA 27.

January 2021

Frustration / Force Majeure

The employer terminated the employees' employment relying on a force majeure / frustration clause in their employment agreements. The employees were not consulted with on the decision and were simply provided with two weeks' notice of termination.

The Authority considered two factors:

• Did circumstances exist at the relevant time to invoke the clause; and
• If so, in invoking the clause did the employer comply with its legal obligations.

Here, it was found that circumstances did not exist at the time that the employer relied on the clause, and the employer ignored its obligation to consult in circumstances where it was possible and reasonable to do so. Therefore, the employees were found to be...