Dismissal of healthcare worker upheld by courts; worker could be on hook for costs
A former Wairarapa District Health Board (DHB - now Te Whatu Ora) employee may have to pay $20,000 in costs to Te Whatu Ora after unsuccessfully challenging her suspension and dismissal in the Employment Court.
While the appeal has yet to be heard by the Court of Appeal (scheduled for 18 March 2025), the Employment Court’s decision - Turner v. Te Whatu Ora – Health New Zealand [2023] NZEmpC 158 - serves as a cautionary reminder that social media posts related to an employee’s employment or role online could have serious workplace implications.
In this case, the employee was a registered palliative care nurse employed by Te Whatu Ora from May 2015 until her summary dismissal in April 2021. The dismissal occurred after Te Whatu Ora learnt of a series of “anti-vaccine” posts that the employee shared on Facebook and offensive and disrespectful posts about Muslim New Zealanders. For example, she posted:
- In response to the Government’s Unite Against COVID-19 campaign: “The injection is not ‘free’ the tax payers of NZ ARE paying for it! I’m glad the word voluntary is used, so we can decline the injection.”
- In opposition to a Māori specific COVID-19 vaccine plan: “Don’t do it people, this vaccine is unsafe.”
Employer reputation at risk
The posts caused Te Whatu Ora concern as they ran counter to its interests and breached its Code of Conduct, which warns against actions that might cause damage to the DHB’s reputation, or cause it to be linked to derogatory, racist, or other offensive comments. She was accordingly summarily dismissed following a good faith process.
In Turner v. Wairarapa District Health Board [2022] NZERA 259, the Employment Relations Authority (Authority) held the dismissal was justified. On appeal, the Employment Court upheld the Authority’s determination that the suspension and dismissal were justified. It confirmed: “Social media posts, even if done in the employee’s free time, and containing their personal opinions, are not automatically protected from possible employment consequences.”
Critically, the posts were in breach of workplace policies, accessible to other employees of Te Whatu Ora and ran contrary to its active and open work to support and deliver the Government’s vaccination programme. It accepted that, as a medical professional, the employee’s views could have influenced her colleagues. The employee also provided no assurances that the behaviour would not be repeated.
The Employment Court also rejected an argument that the New Zealand Bill of Rights 1990 (BORA) provided her with a right to free speech. The Court held that BORA has a limited application - to acts done by the legislative, executive, or judicial branches of the Government of New Zealand, or by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law - and did not apply to employment decisions, even if made by public entities or entities operating in the public sector that perform a public function.
Rather, employment matters are more properly governed by the principles of general private law (in this case, employment law). Further, even if BORA applied in this context, the rights in the BORA are subject to reasonable limits and do not protect everything that an employee might say, particularly if such statements are contrary to the interests and actions of the employer.
The court held that should Turner’s proceedings in the Court of Appeal fail, Te Whatu Ora is entitled to legal costs totalling $20,000.
This decision reminds parties to an employment relationship that out-of-work conduct can be the subject of disciplinary action if it has the potential to bring the employer into disrepute, or otherwise erodes the trust and confidence an employer has in its employee.
Maria Green is a Special Counsel specialising in employment law at Lane Neave in Christchurch. Elisabeth Giles is a Senior Solicitor in the Employment Law Team at Lane Neave in Christchurch.
