The COVID-19 pandemic highlighted how quickly workplaces can be disrupted by events outside anyone’s control. While governments may introduce temporary rules in such situations, the fundamentals of employment law remain unchanged. Employers must continue to act fairly and reasonably, especially when considering the possibility of ending employment.
Lessons from recent cases
The case of Hullen v Air New Zealand Ltd shows what good practice looks like. Air New Zealand openly engaged with staff, communicated about vaccination requirements, and actively looked at options such as redeployment and leave without pay. The Authority accepted that the airline had acted reasonably and fairly, and the unjustified dismissal claims were unsuccessful.
On the other hand, Wills v IDEA Services Ltd demonstrates the risks when obligations are not met. Ms Wills was dismissed without being given all relevant information, without genuine consultation, and without her proposal for remote work being fully explored. Even though her employer later explained why remote work wasn’t practical, this had not been communicated to her at the time. The Authority found the dismissal unjustified and awarded remedies.
What employers should take away
• Legal obligations don’t disappear in a crisis – even during pandemics or natural disasters, the requirement to act fairly and reasonably remains in place.
• Termination must be a last resort – employers are expected to seriously investigate other options before making final decisions about employment.
Practical guidance for employers
To reduce risk and ensure compliance, employers should:
• Engage in meaningful consultation – provide affected staff with all relevant information, listen to their feedback, and explain why alternatives may not be workable.
• Consider alternatives first – look at redeployment, working from home, leave without pay, or discretionary leave before moving to dismissal.
• Keep thorough records – document the information shared, the discussions held, and the options considered.
The COVID-19 experience makes it clear that fairness and transparency are key in navigating unpredictable challenges. Employers who communicate openly, consider alternatives carefully, and document their decision-making will be better positioned to meet their legal duties.
Diane Hallifax | Director & People and Culture Specialist