An Auckland plastics manufacturer has learned that the pandemic’s legal tail is longer than most HR teams assumed. The Employment Relations Authority found LEP Engineering Plastics breached its good faith obligations by failing to consult a 24-year employee on the Covid risk criteria it used to justify action against them, and ordered it to pay $17,500.
The employer did not lose because worrying about Covid was unreasonable. It lost because it made a decision about a long-serving worker without asking that worker about the criteria it was relying on. That distinction is the whole story, and it has been the whole story since 2021.
The emergency never suspended the rulebook
All remaining vaccine mandates in New Zealand ended at 11:59pm on 26 September 2022. Plenty of businesses quietly filed their pandemic paperwork away at that point. The law did not.
Writing in the New Zealand Journal of Employment Relations in 2022, academic Amanda Reilly put the principle bluntly: “The need for employers to consult and engage with employees in good faith was not negated by the fact of a public health crisis and national state of emergency.” The government had deliberately left employers to implement orders and risk assessments while preserving employees’ right to challenge terminations.
Lawyers saw this coming early. Back in 2021, Chapman Tripp’s Marie Wisker warned that the legislation didn’t provide the legal certainty employers hoped for, leaving them exposed on both process and underlying decisions. Health and safety law ran on the same track. Official guidance stated that employers must consult with workers and health and safety representatives rather than assume staff would speak up.
Every loss followed the same script
Look at the run of cases since and the pattern is almost monotonous.
In 2022 the Employment Court found Carter Holt Harvey LVL was not entitled to require lockdown leave during the 2020 Level 4 lockdown because it failed to consult before directing staff onto annual leave. Ordinary Holidays Act rules, including seeking agreement and giving 14 days’ notice, still applied.
In 2023 the Court overturned an earlier Authority finding and held Customs unjustifiably dismissed an unvaccinated Assistant Customs Officer. Customs sent a generic letter instead of explaining why that specific role needed a vaccinated worker, and sought feedback on termination but not on its own risk assessment. The bill was $25,000 plus three months’ lost earnings.
That same year a university was ordered to pay anatomical model fabricator Louisa Baillie $20,000 for hurt and humiliation plus $33,023.50 in lost earnings after it failed to properly explore her offer to work from home or use leave. Employment lawyer Bronwyn Heenan said at the time that “process remains key and missed steps cost employers significantly”.
None of these employers lost on the science. Practitioner commentary has made the same point repeatedly: even where the public health rationale was sound, employers were found liable when they skipped genuine engagement on alternatives. Generic letters, predetermined outcomes and unexplored redeployment options were the recurring failures.
Why old files are still landing on desks
The Authority is not short of work. Its 2024 annual report recorded a 22 percent increase in employment relationship problems lodged, with unjustified dismissal grievances the dominant category. Pandemic-era disputes are working through that queue alongside everything else, and the remedies available, from compensation to reinstatement and penalties, are the standard toolkit, not a special Covid regime.
That matters for business owners in two ways. First, any unresolved pandemic-era grievance is a live liability, not a historical curiosity. A $17,500 award is survivable for most firms, but legal costs, management time and the reputational sting of a published determination add up. Second, and more usefully, the cases are a free training manual for the next crisis, whether that is a pandemic, a natural disaster or a sudden restructure.
The cheap fix nobody wants to bother with
The frustrating part for a pro-business reader is that every one of these awards was avoidable at low cost. Explain the specific risk criteria to the specific worker. Ask for their view and genuinely consider it. Look at redeployment, remote work or leave before reaching for termination. Write it down.
There is a fair argument that good faith obligations can be applied with too much hindsight, especially when employers were juggling shifting government orders in real time. But the courts have not demanded perfection. They have demanded conversation, and employers who had it generally kept their decisions intact.
LEP Engineering Plastics will not be the last business to pay for a pandemic shortcut. The next emergency will produce its own rushed decisions. Employers who treat consultation as a box to tick after the call is made should expect the Authority to keep reading the file the same way it has for five years.
Sources
- Stuff: Unvaccinated worker awarded $17,500 after employer failed to consult on risk criteria (2026-11-10)
- New Zealand Journal of Employment Relations: Good faith in the time of Covid-19, key legal developments 2020-2022 (2022-11-21)
- BusinessDesk: Vaccine mandates will create ‘flood’ of personal grievance claims (2021-11-29)
- Employment New Zealand: Employment Court finds employer was not entitled to require lockdown leave, due to process errors (2022-09-12)
- Anderson Lloyd: Employment Court overturns vaccination decision, comments on tikanga and heightened public sector obligations (2023-08-04)
- BusinessDesk: The lingering employment headache of covid-19 (2023-08-24)
- Employment Relations Authority: Annual report 2024 (2024)
- Employment Relations Authority: Determinations
Join the discussion
Add useful context, ask a good question, or challenge an idea — keep it specific and respectful.