Dismissed employee to be paid $30k

A Southland woman who was wrongfully fired for not wearing a mask has been paid out more than $30,000 by her former employer.

Gillian Smyth took Fonterra to the Employment Relations Authority last month and successfully argued that she had been wrongfully dismissed from her role.

She had worked for Fonterra for nearly 20 years and was a supervisor in the canteen at Edendale.

A problem arose last year when Ms Smyth did not wear a facemask to work to comply with Covid-19 regulations.

She said this was because of a health condition but Fonterra said they did not have enough evidence to allow it.

At first Ms Smyth did wear a mask at work but said this exacerbated her asthma and so she stopped.

In 2021, the woman got a mask-exemption card which she provided to her interim supervisor.

Later, Fonterra adopted their own mask-exemption process which they said was only for vaccinated staff.

In early 2022, she was asked to wear a face shield instead which she did, but when her regular supervisor returned from parental leave she was told to stay away from work if she could not wear a facemask.

Following this she received a letter from Southern operations facilities manager, Murray Dalley.

He raised concern about her "alleged ongoing refusal to wear a mask in the workplace" and that her actions might amount to serious misconduct.

In a meeting two days later, Ms Smyth explained that her position on mask wearing was unchanged and that she would provide a medical certificate, which she did.

Mr Dalley said it was "highly unlikely" that she would receive an exemption to work in her role given her vaccination status.

Ten days later a letter was dropped in Ms Smyth’s letterbox titled "proposal to terminate employment".

Contrary to what had been foreshadowed at the meeting, the letter said she would be fired because she was unable to fulfil a requirement of her role "namely the requirement to wear a facemask".

Fonterra said there was not sufficient medical information to consider what other accommodations could be made for Ms Smyth.

Following this letter, another meeting was held where Mr Dalley said he had no choice but to terminate her employment with Fonterra, and he sent her a letter confirming that.

Authority member Philip Cheyne found that Ms Smyth was not given enough time to respond to the new concern that she could not fulfil the requirements of her role, that Fonterra did not sufficiently investigate the issue and that they did not genuinely consider her explanation.

"In the absence of a reasonable opportunity to respond to the. . . concerns, Fonterra cannot establish that it genuinely considered Ms Smyth’s explanation before it dismissed her," the authority member said.

"Ms Smyth did not contribute in a blameworthy manner to the circumstances giving rise to her personal grievance."

Fonterra was ordered to pay Ms Smyth $30,000 personal grievance and more than three months’ ordinary pay.