Tighe-Umbers v Jetconnect Limited

Captain Phillip Tighe-Umbers worked as a pilot for Jetconnect Limited, operating Qantas flights from Auckland. His employment was governed by a collective agreement with the New Zealand Airline Pilots Association. The COVID-19 pandemic led to extended leave without pay for pilots, and later, the government introduced a vaccination order requiring aircrew to be vaccinated.

Captain Tighe-Umbers provided a medical certificate citing adverse reactions to vaccinations and explored the possibility of a medical exemption, which was not pursued. Jetconnect recalled him to duty, requiring vaccination. After ongoing consultation, Jetconnect terminated his employment for non-compliance with the vaccination order. Captain Tighe-Umbers challenged the dismissal, arguing Jetconnect failed to consider alternatives like leave without pay.

The Employment Court found that Jetconnect unjustifiably dismissed Captain Tighe-Umbers. The Court held that Jetconnect failed to ensure all reasonable alternatives to termination were exhausted, specifically by not granting leave without pay as an option. Schedule 3A clause 3(4) of the Employment Relations Act 2000 requires employers to consider alternatives before dismissing an employee for incapacity.

The Court did not make a finding on whether Schedule 3A was an implied term of the employment agreement, but emphasised the legislative obligation to consider alternatives. Remedies and costs were reserved for later determination.

If your business employs staff who are subject to public health orders, you must follow a fair and reasonable process before considering dismissal. This includes consulting with the employee, reviewing medical evidence, and considering alternatives such as leave without pay.

Document your decision-making process and ensure you comply with both your employment agreements and relevant legislation. Rushing to dismiss without exploring alternatives can expose your business to legal claims and reputational risk.

Employers should establish a clear process when dealing with employees unable to comply with health orders. Start by consulting with the employee and seeking medical evidence. Explore all reasonable alternatives, including leave without pay, redeployment, or flexible arrangements.

Keep detailed records of all communications and decisions. If dismissal is considered, ensure it is a last resort and that all alternatives have been exhausted. Seek advice if unsure about legislative requirements or collective agreement terms.

Schedule 3A of the Employment Relations Act 2000 sets out the process for dismissing employees for incapacity. Clause 3(4) requires employers to consider reasonable alternatives before termination. The COVID-19 Public Health Response (Vaccinations) Order 2021 imposed vaccination requirements on certain workers, including aircrew.

Collective employment agreements may also contain relevant provisions about notice periods, leave, and dismissal procedures. Employers must ensure compliance with both legislative and contractual obligations.

Use this checklist to ensure your business follows fair process when considering dismissal for incapacity or non-compliance with health orders.