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Nurse dismissed for Facebook posts denied second appeal

27 Jun 2024

| Author: Anna Longdill

Application for leave to appeal judgment of Employment Court – Employment Relations Act 2000, ss 105(1)(c) & (j), 214  – New Zealand Bill of Rights Act 1990, ss 3(b), 13 & 14 – Human Rights Act 1993, s 21(1)(c) & (j) –  were the actions of the DHB as an employer subject to s 3(b) of the Bill of Rights? – do any questions of law arise out of the claims the appellant was dismissed or discriminated against  on the basis of religious belief and political opinions?

 Turner v Te Whatu Ora – Health New Zealand, Wairarapa (formerly Wairarapa District Health Board) [2024] NZCA 203

 

Amanda Turner was employed by the Wairarapa District Health Board as a registered palliative care nurse, working in the community. In April 2021, she was summarily dismissed after an investigation into posts made on her personal Facebook page.  The DHB was alerted to the posts by staff at an aged residential care facility where Turner worked.

The Facebook posts (accessible to Turner’s 86 Facebook friends) expressed concern about the covid-19 vaccine and involved memes and strongly worded allegations. They had caused staff at the facility to question whether they should be vaccinated. There were also posts expressing concern about Muslim immigration, which were derogatory of Muslims.

Turner asserted she was entitled to express her opinion and claimed she was discriminated against based on her Christian faith and political beliefs, contrary to s 21(1)(c) & (j) Human Rights Act 1993 and s 105(1)(c) & (j) Employment Relations Act 2000.

The DHB concluded that Turner had breached the DHB’s expectations of her, the DHB’s Code of Conduct and the Nursing Council of New Zealand’s Code of Conduct and she was dismissed.

Turner unsuccessfully pursued a personal grievance in the Employment Relations Authority.

Turner then challenged the Authority’s determination in the Employment Court, arguing that her summary dismissal was unjustified and that the DHB had discriminated against her on the grounds of religious belief and political opinions and ignored her rights to freedom of thought and freedom of expression (ss 13 and 14 of the Bill of Rights).

Turner relied on s 3(b) of the Bill of Rights, which provides that the Act applies to acts done “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 asserted that the DHB performed public functions and therefore must act in accordance with the Bill of Rights.

The Employment Court rejected the argument that the posts could not be the subject of disciplinary action because of the Bill of Rights, holding that employment does not involve the performance of any public function, power or duty, employment matters being ancillary to the DHB’s public functions.

The Employment Court also rejected Turner’s claims that she had been dismissed because of her religious beliefs, stating there was nothing to suggest her Christianity had any bearing on the DHB’s decision-making.  Turner’s claim that she was dismissed because of political opinions was similarly dismissed on the facts.

Turner sought leave to appeal to the Court of Appeal on a question of law.  The issues were whether the Employment Court erred by:

  1. denying Turner the protection of ss 13 and 14 of the Bill of Rights by holding that the DHB was entitled to limit her political speech (including speech outside the workplace);
  2. denying Turner the protection of s 21(1)(c) and (j) of the Human Rights Act 1993; or
  3. finding that she was not discriminated against for the purposes of s 105(1)(c) and (j) of the Employment Relations Act 2000.

 

Applicable principles: Employment Relations Act 2000, ss 105(1)(c) & (j), 214  – New Zealand Bill of Rights Act 1990, ss 3(b), 13 & 14 – Human Rights Act 1993, s 21(1)(c) & (j) –  were the actions of the DHB as an employer subject to s 3(b) of the Bill of Rights? – do any questions of law arise out of the claims the appellant was dismissed or discriminated against  on the basis of religious belief and political opinions?

 

Held: The application for leave to appeal is declined. The relevant actions of the DHB in this case were not subject to s 3(b) of the Bill of Rights. Accepting Turner’s argument would mean a public service employer could not discipline staff claiming the right to express opinions directly contrary to the employer’s policies and critical of racial or ethnic groups, which is not seriously arguable. No question of law arises from Turner’s claims of discrimination because of religious beliefs and political opinions as those claims were rejected on the facts.

 

Turner v Wairarapa District Health Board 2024 NZCA 203

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