A psychiatric nurse sacked after referring to a colleague as “that Māori c***” in a group chat with other co-workers has failed in his bid to be reinstated, despite claiming it was a typo.
Vinod Chand claimed the racially charged insult was meant to read “CUUTE” - a reference to a clinic that hosts Covid patients.
Chand, who had worked at Te Whatu Ora’s Mason Clinic in Pt Chevalier since 2008, launched a reinstatement claim in the Employment Relations Authority (ERA) after being sacked over the message in December.
According to the decision, Chand was a member of a social Facebook group chat with 17 other colleagues. The colleague Chand made the comment against was not in the group.
During a June conversation about staff with Covid-19 as well as the conduct of other colleagues who weren’t in the group chat, Chand wrote “get the CUTTE manager to sort it out the Māori c***.”
Three other colleagues in the chat replied with laughing emojis.
Two days later, a person in the group told the subject of the comment, Ms D, what Chand had said. Ms D then filed a complaint against Chand, who was told of the complaint on the same day.
The issue sparked division in the unit. The employee who told Ms D of the comment said he was labelled by colleagues supportive of Chand as “a nark”, and had been “indirectly bullied” by them.
Other colleagues reported feeling unsafe in the workplace, particularly given 50 per cent of the clinic’s patients were Māori. The subject of the comment spoke of how her mana was stripped and the effect it had on her mental health.
Chand’s comment was “disparaging and culturally desecrating”, she said.
The insult was the last message in the group chat before Chand wrote that he was sorry to anyone who took offence. He sent the message once he had learned a complaint was laid.
Sacking ‘not reasonable’ - lawyer
Chand was transferred to another unit while he was investigated by an Auckland lawyer contracted by Te Whatu Ora. In September, this lawyer undertook interviews with members of the group chat, Chand and Ms D.
Chand said although he was referring to Ms D, his comment was in respect of “discussions about the establishment of a potential Māori covid unit”. No such unit had been proposed, however.
This lawyer used her phone to test whether the word CUUTE could be autocorrected to the offensive term used. In her report, the lawyer found it was unlikely to be an error, and that Chand had intended to refer to Ms D.
In late November a meeting was held between Te Whatu Ora managers and Chand to discuss the report’s findings. Three days later, a disciplinary process was launched.
In a disciplinary meeting with Te Whatu Ora representatives and Chand, his lawyer Simon Mitchell KC submitted the group chat was not work-related, the message was a typo and dismissal wasn’t a reasonable action in the circumstances.
Four days later, Te Whatu Ora reached a preliminary decision and asked for Chand’s feedback. After considering his response, it was concluded Chand was responsible for serious misconduct and his employment was terminated.
He then launched a claim in the ERA alleging unjustified dismissal. Mitchell submitted on his behalf that Chand was entitled to express his views outside of work hours, the comment was between friends, and that Chand had a reasonable expectation of privacy.
The ERA concluded it was an arguable case - a low threshold. “That is not to say he will be successful, but it cannot be said these arguments are frivolous or vexatious,” member Rachel Larmer wrote.
The authority then had to consider if he had an arguable case for reinstatement. Te Whatu Ora submitted the trust and confidence in the parties’ relationship was destroyed to such an extent that a reinstatement should not be available.
The authority again found Chand had an arguable case.
But Larmer ultimately found the “balance of convenience” strongly weighed against Chand’s reinstatement. She was satisfied his comments created division among staff and caused emotional harm, and reinstatement was not in the best interests of patients.
Although untested, Chand’s arguments didn’t strike Larmer as strong, she said.
A substantive hearing considering Chand’s unjustified dismissal claim will be set down for a later date.
In a statement, Te Whatu Ora’s chief people officer Andrew Slater said it welcomed the decision, but wouldn’t comment further on the case as it was an individual employment matter.
“Our people deserve a safe workplace, and we want all New Zealanders to have access to our services in a safe and welcoming environment.”