Cases of interest: September 2023

A summary of interesting or topical employment cases.

Turner v Te Whatu Ora – Health New Zealand, in respect of the former Wairarapa District Health Board [2023] NZEmpC 158

Employment Court – Challenge – Unjustified dismissal – Misconduct – Posting on Facebook – Anti-vaccine content – Anti-Muslim content

An issue was whether the employee was unjustifiably dismissed for sharing anti-vaccination and anti-Muslim content on her personal, private Facebook page.

The employee was employed as a registered nurse, working in community palliative care for a District Health Board (DHB). The nurse shared COVID-related anti-vaccination content with 86 friends on her Facebook page. Her posts included strongly worded statements telling people the vaccine was not safe and they should not get vaccinated. The employee specifically told Māori to not get the vaccine. The nurse also shared anti-Muslim content on her Facebook page.

Another nurse who had access to the employee's Facebook page told the employer about the anti-vaccine content. The nurse said the anti-vaccine content had made staff at an aged residential care facility question whether to get vaccinated. The nurse gave the employer screenshots of the anti-vaccine content. The nurse also shared screenshots of anti-Muslim content posted on the same page. The employer carried out an investigation and then dismissed the employee for serious misconduct.

An issue was whether the employer could rely on content shared on a private Facebook page as a basis for dismissing the employee.

The Employment Court (Court) found that social media posts shared in the employee's free time and containing their personal opinions could still have employment consequences if they brought the employer into disrepute or eroded the employer's confidence. The Court found that because the employee had 86 Facebook friends, the posts could not "be regarded as truly private…the posts were accessible to other employees of the DHB and employees of the aged residential care facility" (see paragraphs 72, 73).

The Court found the posts were directly contrary to the position taken by the Ministry of Health and the DHB on vaccines and "had the potential to undermine the trust and confidence of the public in the DHB" (see paragraph 67). The Court took into account that the employee shared the anti-vaccine posts when the DHB was actively involved in work to support and deliver the Government's vaccination programme. The Court noted that aged residential care facilities were particularly vulnerable and the employee was a respected medical professional whose views could influence the elderly and people with health issues (see paragraphs 81–82).

The Court said anti-Muslim posts ran counter to the DHB's Code of Conduct and the Nursing Council of New Zealand Code of Conduct and could harm the DHB's reputation (see paragraph 83). The Court said freedom of religion protections did not apply to the anti-Muslim posts (see paragraph 66).

The Court found the employer was justified in dismissing the employee in response to the Facebook posts. The Court found that the employer had followed a fair process. The Court said the employer gave the employee the opportunity to respond to concerns about the posts and her explanations did not mitigate her actions (see paragraphs 84, 85).

Turner v Te Whatu Ora – Health New Zealand, in respect of the former Wairarapa District Health Board [2023] NZEmpC 158(external link)

Whakarongorau Aotearoa New Zealand Telehealth Services LP v New Zealand Public Service Assoc Te Pūkenga [2023] NZEmpC 157

Employment Court – Collective bargaining – Injunction against striking – Essential service employees – "Tele-health" workers

At issue was whether the Employment Court should issue an injunction to stop certain "tele-health" staff from striking during collective bargaining.

The employer provided telephone-based health services to the public. The respondent unions represented about 300 union members who worked for the employer. The unions and the employer were engaged in collective bargaining. The unions gave the employer notice that they intended to go on a 24-hour strike in relation to the bargaining. The notice gave 8 days' notice of the strike.

Six days after the unions issued the strike notice, the employer informed the union it considered certain staff were barred from striking as their work was an essential service under Schedule 1(external link), Part A of the Employment Relations Act 2000 (the Act). The employer sought an injunction against the proposed strike in relation to 34 emergency "teletriage" nurses and paramedics and "EMHR" nurses/clinicians.

The employer claimed the specified employees could not strike because the unions did not give the 14 days' notice required for a strike by essential service employees. The unions claimed the employees were not essential service employees and so the 14 days' notice requirement did not apply.

By the time the Court heard the matter, the employer and the unions had agreed on a contingency plan for life preserving services, in the event the strike went ahead. The employer considered that it still needed the required 14 days' notice of the strike because the parties needed time to go to mediation.

The Court issued an interim injunction against the strike (see paragraph 38). The Court considered there was a strongly arguable case that all 3 staff categories were essential service employees, meaning the strike was unlawful without 14 days' notice (see paragraph 26). In coming to that decision, the Court took into account:

  • The teletriage nurses and paramedics' position descriptions referred to them working with ambulance services and in some cases dispatching an ambulance and referring the caller to an emergency department (see paragraph 23).
  • The EMHR nurses/clinicians were responsible for assessing clinical risk when the police, ambulance services and after-hours DHB services contacted them; they were responsible for ensuring urgent cases were identified and handled appropriately (see paragraph 24).

The Court considered the balance of convenience lay with issuing an interim injunction (see paragraph 36). The Court took into account:

  • The public interest in having access to essential health services pointed to granting relief (see paragraphs 32, 34).
  • The requirements for notice in relation to strikes in essential services were mandatory (see paragraph 33).
  • The bar against striking affected only a small number of the 300 union members. There was no impact on other employees' ability to strike (see paragraph 35).
  • Overall justice supported granting the interim injunction to enable parties to attend mediation (see paragraph 37).

Whakarongorau Aotearoa New Zealand Telehealth Services LP v New Zealand Public Service Assoc Te Pūkenga [2023] NZEmpC 157(external link)

Wiles v Vice-Chancellor of the University of Auckland [2023] NZEmpC 159

Employment Court – Disclosure – Requirement to disclose original documents

At issue was whether the employer complied with disclosure orders by the Court, when it provided an affidavit summarising the requested information, instead of providing anonymised source documents.

In an earlier proceeding (Wiles v The Vice-Chancellor of the University of Auckland [2023] NZEmpC 136(external link)) the employee claimed she was "singled out" for not complying with the employer university's policy on carrying out activities outside of the university. The employee sought orders requiring the employer to outline when it had cautioned other employees for such non-compliance.

In the earlier proceeding, the Court made orders requiring the employer to disclose instances, within a certain timeframe, where the employer had "investigated and cautioned staff” who it considered had "gone beyond the constraints of law and university policy when exercising academic freedom and providing public commentary". The Court said the employer should provide the disclosure by means of a document or documents that summarised the circumstances involved and the outcome (if any) (see paragraph 23 of that decision). The Court further stated (in paragraph 25 of that decision):

[25] The University’s affidavit listing the documents ordered to be disclosed is to be provided to Associate Professor Wiles within 14 days of the date of this interlocutory judgment, with disclosure of documents to be attended to by providing copies contemporaneously, or at the latest within seven days of that list being provided.

The employer provided disclosure by means of an affidavit which summarised 4 instances it was aware of that fell within the scope of disclosure ordered. The employee considered the affidavit did not comply with the disclosure ordered under paragraph 25 of the earlier decision. The employee said she expected that the employer "would provide original, but anonymised, documents that together summarised the circumstances of the previous incidents and the outcome of the employer's processes" (see paragraph 5). The employee sought an order requiring the employer to provide such a list, together with copies of anonymised source documents.

The Court declined to make the requested order. It considered the employer had complied with the substance of its disclosure order, if not the form (see paragraphs 8 to 11).

Wiles v Vice-Chancellor of the University of Auckland [2023] NZEmpC 159(external link)

New Zealand Public Service Assoc Te Pūkenga Here Tikanga Mahi Inc v Chief of Defence Force [2023] NZERA 558

Employment Relations Authority – Collective bargaining – Breach of good faith – Passing on terms of a collective agreement

Employment Relations Authority – Union membership – Unlawful preference towards non-union members

At issue was:

  • whether the employer gave an unlawful preference to non-union members when it backdated a pay increase for non-union members, but not for union members; and if so, whether the Employment Relations Authority (the Authority) should order the employer to backdate the pay increase for union members
  • whether the employer breached good faith under section 4 of the Act (external link)when it passed on a pay increase under a collective employment agreement (CEA) to non-union members; and if so, whether the employer should be penalised.

In 2020 and 2021 the employer and the New Zealand Public Service Assoc Te Pūkenga Here Tikanga Mahi Inc (the union) were undergoing collective bargaining after the previous collective employment agreement (CEA) expired in 2019. Before a new CEA was settled, the employer carried out a remuneration review. Based on the review, the employer decided to increase pay for some civilian non-union members, effective 1 July 2021, but not for union members.

In November 2021, the employer and the union agreed on a new collective agreement. The employer provided pay increases to union members from the date the CEA took effect. The union sought to have the pay increases under the CEA backdated to when the non-union employees received a pay increase. The employer declined. The employer said it offered the union the same increase provided to non-union-members in an earlier pay increase in 2020 and the union chose to continue bargaining, rather than accept the increase. The employer said as a result the employer was contractually bound to the agreed date for pay increases in 2021 (see paragraphs 31 to 33).

The union claimed by not backdating the pay increases the employer breached the prohibition on preference in section 9 of the Act(external link) (see paragraph 29). The union claimed that the employer also breached the duty of good faith in section 4 of the Act by passing on the union's negotiated pay increases to non-union employees (see paragraphs 48 to 53).

The Authority agreed that by paying non-union members more for a period of time, the employer breached the prohibition against preference based on union membership status (see paragraphs 34 to 37). The Authority ordered the employer to backdate the pay increases for specified union members to 1 July 2021, with interest (see paragraphs 42, 83, 84).

The Authority said it could not consider a claim for breach of good faith solely under section 4 of the Act, when section 59B of the Act(external link) specifically addressed breaches of good faith relating to passing on. In coming to that determination, the Authority applied the Court of Appeal decision Christchurch City Council v Southern Local Government Officers Union Inc(external link) [2007] NZCA 11, [2007] 2 NZLR 614 (see paragraphs 44 to 46).

The Authority found the employer's actions did not meet the test for a breach good faith under section 59B(2). The Authority accepted the employer passed on a term of the CEA with the intention of undermining the CEA, as required under section 59B(2)(a) (see paragraphs 72 to 76). However, the Authority said passing on the term did not have the effect of undermining the CEA, as required under section 59B(2)(b) (see paragraphs 78 to 80).

The Authority determined there was no basis for penalising the employer for a breach of good faith.

New Zealand Public Service Assoc Te Pūkenga Here Tikanga Mahi Inc v Chief of Defence Force [2023] NZERA 558(external link)

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