Turner v Te Whatu Ora - A good reminder on social media usage

5 October 2023

Amanda Turner was employed by the Wairarapa District Health Board (the DHB) as a registered palliative care nurse in May 2015. In March 2021, DHB management became aware of Facebook posts Turner had made to their 86 followers which included anti vaccine information and memes, opposition to Māori specific COVID-19 plans, as well as some “derogatory [content] towards Muslims generally”.1

The DHB suspended Turner and, after several meetings, decided to terminate their employment effective immediately due to serious misconduct. The DHB’s decision was influenced by Turner’s engagement; specifically, their continued focus on the fact the content was “private” rather than the substantive issue or how the posts could impact the DHB or wider nursing profession.

On 21 September 2023, the Employment Court released its decision agreeing that Te Whatu Ora was justified in summarily dismissing Turner.

Key Takeaways

Even if you think your posts are private – they are public

Facebook, Instagram, and TikTok posts outside work time, even with privacy settings in place, can still impact your employment. Most workplaces now have policies regarding social media use, like the DHB did in this case, and so it pays to really think before posting something you might regret later.

The Court was clear that “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”2. Turner’s posts, both in respect of religious groups and the issue of vaccination, were found to warrant summary dismissal as they ran directly contrary to the DHB’s interests and could have harmed its reputation.

But what about Freedom of Speech and Expression?

Turner argued dismissal for the Facebook posts was contrary to their right to free speech and was unjustifiable. However, they were ultimately unsuccessful in using the NZ Bill of Rights (BORA) as a shield for protection from the consequences of the posts.

The Court determined that BORA does not apply to employment decisions, even if made by public entities or entities operating in the public sector that happen to perform a public function, as “employment does not involve the ‘performance of any public function, power or duty’”3. Additionally, reasonable limits apply to BORA.“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”4.

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[1] Amanda Turner v Te Whatu Ora – Health New Zealand, in respect of the former Wairarapa District Health Board [2023] NZEmpC 158, at [12].

[2] As above at [73].

[3] As above at [76].

[4] As above at [77].

Moira Gray is part of our Commercial Disputes & Employment team at Norris Ward McKinnon.

Commercial Disputes & Employment Team