Employment Relations Authority: DHB Nurse Justifiably Dismissed for Posting Anti-Vaccination Sentiments on Facebook.
A palliative care nurse employed by the Wairarapa District Health Board (DHB) was dismissed after an investigation revealed she had posted anti-vaccination advice and information on Facebook, as well as criticisms of the government’s response to COVID-19.
The Employment Relations Authority recently held the dismissal was substantively justified. The trust and confidence the DHB previously placed in the nurse was destroyed as a result of her inability to recognise the impact of her posts, and her lack of remorse for making them.
Amanda Turner’s Facebook posts were brought to the DHB’s attention by a manager from a local aged care facility. Although the content of Turner’s posts was not reproduced in the judgment, the Authority gave an example of one post where Turner described the then only available COVID-19 vaccination as “murderous”.
The Decision to Dismiss
The DHB interviewed Turner twice as part of an investigation into her conduct. Turner did not understand why her Facebook posts had been called into question because, according to her, they were private posts and shared with likeminded people. During one meeting with the DHB, Turner acknowledged that her posts “may offend some people”, but that she was entitled to express her personal opinion. She further explained that she did not ever speak about the content of her posts in the workplace, and thus could not influence others thinking on matters regarding COVID-19 and vaccination.
Given Turner’s ongoing inability to understand and acknowledge the impact of her Facebook posts, the DHB confirmed their decision to dismiss Turner without notice. Turner subsequently raised a personal grievance.
The Authority agreed with the DHB held that Turner lacked complete insight throughout the DHB’s investigation. Turner was working in a community-based role, nursed vulnerable patients, and it was not unreasonable to expect Turner to refrain from making critical and controversial comments on the COVID-19 related matters. Turner failed to understand that her occupation and standing in the community made her specific posting about vaccination inappropriate.
Conduct outside of the workplace bringing the DHB into disrepute?
As part of its conclusion that Turner’s dismissal was justified, the Authority found that the DHB was lawfully entitled to believe that Turner’s posts had brought the DHB’s reputation into disrepute, and could potentially continue to do so.
Turner argued that because her posts were shared with 200 Facebook friends only, there was no causal nexus between her posts and her employment, and thus no impact on the DHB’s reputation. The Authority rejected this argument with reference to Hook v Stream Group (NZ) Pty Ltd  NZEmpC 188. There, the Employment Court held that Facebook posts (including those protected by privacy settings) may not be regarded as protected communications beyond the reach of employment processes where the information can be passed on to a “limitless audience”. Here, the Authority found there was a significant risk of harm to the DHB’s reputation had her posts been viewed by the wider community.
Breach of Right to Freedom of Expression?
Turner contested that the DHB’s decision to dismiss infringed on her right to freedom of expression under the New Zealand Bill of Rights Act 2020 (NZBORA).
As the Authority stated in its judgment, it does not have jurisdiction to provide any remedies for breaches of NZBORA, or any declarations as to its applicability. Turner would need to apply to the High Court for a judicial review of the DHB’s decision if she wished to progress this claim further.
Alternative Option to Dismissal?
As part of its judgment, the Authority considered whether a more suitable alternative to dismissal was available to the DHB. During the hearing, Turner’s counsel suggested that a direction to ‘cease and desist’ her Facebook posts alongside some awareness training would have been more reasonable. The Authority concluded that such measures were not reasonably available to the DHB given Turner’s “obdurate defence of her views” and lack of insight.
 Turner v Wairarapa District Health Board  NZERA 259.
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This article was included in Edition 15 of our employment newsletter which you can read here.