ERA rejects request for reinstatement
The Employment Relations Authority (ERA) has rejected the reinstatement claim of a psychiatric nurse who was fired by Te Whatu Ora for referring to a colleague as a "Māori c***".
Vinod Chand who started at Te Whatu Ora in March 2008, was fired from his job in December 15 for serious misconduct.
Chand was terminated after referring to another registered nurse that he worked with in the E Tu Tanekaha Unit as "The Māori c***" in June 2023.
The comment was made on a Facebook group chat, which had 16 other members who were also worked at the E Tu Tanekaha Unit. It did not include, however, the referred-to colleague, whom the ERA named as "D."
Chand's comment leaked after another member of the group chat, referred to as "S," disclosed his comment to D.
Workplace investigation finds discrimination
An investigation ensued following the incident, which concluded that the comment amounted to cultural and gender discrimination, was disparaging of D, and was grossly offensive.
The comment also exhibited unprofessionalism and had created a clear division within the unit, according to the investigation.
It added that the comment was also against Te Whatu Ora's Bullying and Harassment Policy and Social Media Policy, the Waitematā District Values, and Principle 6 of the Nursing Council’s Code of Conduct regarding respectful behaviour
Te Whatu Ora, in dismissing Chand for serious misconduct, concluded that his comment regarding D was racist for referring to her culture and race in a demeaning manner.
It was also misogynistic, degrading to Māori females, and made to approximately 16 other staff members who knew and worked with D, according to the Te Whatu Ora.
Offensive comment at work
In his defence, Chand argued that the c-word was a typo changed by autocorrect, claiming that it was supposed to read as "CUTTE," a unit that hosts COVID patients.
He also told the ERA that he was entitled to engage in private communications, pointing out that his comment was made in an online private chat among friends and was not made using a work email or device.
He accepted his comment was offensive and added that his autocorrect explanation did not absolve him of all responsibility. He wrote an apology letter to D after a formal complaint was made on his comment.
D, however, has not read the letter and has not accepted Chand's apology.
ERA's decision on dismissal
Chand submitted to the Employment Relations Authority a case for unjustified dismissal and sought permanent reinstatement at Te Whatu Ora, which his employer denied.
The ERA sided with his employer on the case, noting that the balance of reinstatement "strongly weighs against" Chand's reinstatement.
The ERA cited in its decision the reinstatement's potential impact on the parties involved, such as D, her husband and whanau, S and his whanau, as well as other employees.
"Mr. Chand's comment has seriously damaged relationships with third parties, being other employees, including D and S, which an order for interim reinstatement is likely to aggravate, at least in the short term," the ERA ruling read.
S previously said in his submission that there is "absolutely no way" that he can work with Chang again, adding that his reinstatement would indicate that there is nothing wrong with what he did.
D also threatened that she and her husband will resign effectively immediately if Chand remains an employee of Te Whatu Ora, adding that his reinstatement would be a "disgrace and a disrespect" to her culture.
"This is due to my commitment to protecting the current and future Māori staff entering the workforce," she said in her affidavit as quoted by the ERA.
‘Racial harm’ cited in ERA decision
D also said Chand's comment caused "racial harm" against her culture, pointing out that the insult was not only directed at her, but at all Māori.
The ERA also accepted that Chand's actions created division among employees at Te Whatu Ora, and that his return would likely cause further tension.
"The impact of Mr. Chand's comments 'remains present' and the division in the unit is 'likely to significantly worsen' if he was reinstated on an interim bases," the authority said.
The ERA, however, said there was an arguable case for Chand on unjustified dismissal, where a hearing will be set for a later date.
"That is not to say he will be successful, but it cannot be said these arguments are frivolous or vexatious," the ERA said.
