Former employee likely to pay $20,000 to health board if appeal fails
A former nurse at the Wairarapa District Health Board (DHB) has failed to challenge her previous employer's move to terminate her for posting anti-vaccine information on Facebook.
Amanda Turner was a palliative care nurse at the DHB until she was dismissed in April 2021 because of her anti-vaccine posts, a matter that she raised at the Employment Relations Authority (ERA).
The ERA, however, sided with the DHB ruling that she was not unjustifiably disadvantaged when she was suspended nor unjustifiably dismissed by her employer.
According to the ERA, Turner "neglected to recognise the impact of the inappropriate Facebook postings and this lack of awareness or remorse, destroyed the high level of trust and confidence that the DHB had previously placed in her."
Raising to the Employment Court
Turner raised the matter to the Employment Court to challenge the determination, but the court only upheld the ERA's ruling.
The nurse claimed that the DHB had "no substantive reason to justify summarily dismissing her," arguing that her former employer ignored her rights to privacy and to freedom of expression under the New Zealand Bill of Rights Act 1990 (BORA).
She also alleged that her employer discriminated against her for being Christian and for her political beliefs.
"I do not accept these contentions," Employment Court Judge Joanna Holden said in her ruling.
According to Holden, there was nothing to suggest that the DHB considered her religion in terminating her.
"The posts regarding the vaccine also are not covered by any protection against discrimination based on political opinion," Holden added. "The posts had the potential to undermine the trust and confidence of the public in the DHB, which is inconsistent with the social media policy and with Ms. Turner's obligations to her employer."
Privacy, freedom of expression concerns
The judge also ruled that Turner's Facebook posts can still be considered for disciplinary action even if they were "personal."
"If the out of work conduct could negatively impact on the employer, for example by bringing it into disrepute, or if the conduct otherwise erodes the trust and confidence the employer has in the employee, the employee's conduct can be the subject of disciplinary action," Holden said.
She cited the DHB's employment documents, including its Code of Conduct and social media policy, which made clear the risks with social media posts.
"Ms. Turner was, or ought to have been, aware that posts made on Facebook, even to a closed group, could be the subject of an employment investigation and potential disciplinary action."
Holden also ruled that Turner cannot use the BORA to protect herself from the consequences of her statements, noting that the rights under BORA are "not absolute."
"Even if BORA applied, the rights contained within it do not protect everything that an employee might say, particularly if it is contrary to the interests and actions of the employer," the judge said.
Justified dismissal
Overall, Holden upheld the ERA's ruling that Turner's dismissal was justified given the circumstances.
"For the reasons set out in this judgment, Ms. Turner's challenge is unsuccessful," the judge said.
Holden noted that DHB was open to hearing from Turner over her posts, but her position during their meetings didn't give her employer confidence that she wouldn't repeat her behaviour in the future.
"She lacked understanding of the gravity of the posts and showed no regret for having posted them," Holden said. "That remained the position throughout the Court hearing."
According to the judge, there was no basis for DHB to find any mitigation from Turner's comments during their meetings.
"The decision to dismiss Ms Turner was justifiable; it was one that was open to the DHB as a fair and reasonable employer," Holden said.
Turner has applied for leave to appeal at the Court of Appeals, and Holden said she would need to pay the DHB $20,000 if her proceeding at the appellate court fails.
