After disputing her termination in the Employment Relations Authority (ERA), the dairy giant has now been ordered to pay Gillian Smyth $30,000 in compensation, plus 14 months of wages.
The result for Smyth, who had worked for Fonterra for 19 years, came after the authority found she was unfairly dismissed.
According to the decision, released last week, Smyth first began working for Fonterra’s Edendale plant near Invercargill in 2003. At the time of her sacking, she was a supervisor in the staff canteen.
In November 2021, Fonterra’s Covid-19 protocols required all staff who could not socially distance to wear a mask. Smyth initially followed the protocol, but claimed the mask exacerbated her asthma.
She was granted a mask exemption in accordance with Ministry of Health guidelines, and gave this to her interim boss.
Ten weeks later, this boss asked if she would wear a face shield instead of a mask. Smyth agreed.
It wasn’t until her actual boss returned from parental leave in March 2022 that the issue came to a head. This boss received complaints from other staff about Smyth’s lack of a mask, and human resources told this boss that a face mask was required.
She was then given an ultimatum; wear a mask or stay home on “paid not worked” leave.
At a later meeting with a senior manager, Smyth was told her refusal to wear a mask could lead to dismissal.
Five days later, Smyth received a letter from the senior manager about her “alleged ongoing refusal to wear a mask”. The letter said the refusal could amount to serious misconduct and invited her to a meeting.
That April 8 meeting was uneventful, but a day before a further meeting on April 14, Smyth received another letter titled “proposal to terminate employment”.
The proposed termination wasn’t based on serious misconduct, but that Smyth was unable to fulfil a requirement of her role, that being wearing a mask, due to a medical condition, asthma.
Her employment was terminated at the meeting.
By June, Fonterra’s mask requirements moved from mandatory to voluntary. Smyth then raised personal grievances of unjustified dismissal and unlawful discrimination.
Inadequate time to respond - adjudicator
ERA adjudicator Philip Cheyne said the manager’s initial concerns surrounded serious misconduct, which had changed to concerns about fulfilling her duties by the time she was fired.
He found Smyth wasn’t given an adequate opportunity to respond to the concerns raised in the April 14 meeting. Given the earlier suggestion of serious misconduct, she should have had time to respond given the change in Fonterra’s case.
“Ms Smyth was not eligible under the Fonterra process for a face mask exemption, as Fonterra had concluded that there were no adequate ‘alternative controls’ for unvaccinated staff. Ms Smyth did not have an opportunity to respond to this concern,” Cheyne said.
She was awarded $30,000 in compensation and lost wages and superannuation from June 2022 to August 2023.
Smyth was approached for comment via her lawyer.
Fonterra, which this week was again crowned as New Zealand’s largest company, declined to answer NZME’s questions on the matter.
A spokesperson said the company does not comment on individual employment matters for privacy reasons. This position did not change when NZME noted the matter was the subject of a publicly released judgement.
- By Ethan Griffiths
- Open Justice multimedia journalist, Wellington
