Employers must keep harassed workers safe

Monday 2 September, 2024

Siouxsie Wiles became a media commentator during the COVID-19 pandemic. Wiles, an Associate Professor at Auckland University, was often called upon by the media to provide commentary on what was happening. She also spent time advising Māori communities on their response to COVID-19.  

Not everyone was a fan. Wiles and other academic expert commentators experienced harassment through emails and social media. In March 2020 Wiles received what she believed to be low level harassment. She alerted the University to this. From September 2020 the level of harassment against Wiles escalated. In 2021 Wiles learned that her private contact details and home address were made public, a process known as ‘doxing’. This prompted the University to consider engaging security advice. Further doxing occurred in 2021.

Wiles and other academics continued to raise concerns about the ongoing harassment they were experiencing. Meetings and correspondence between the University, Wiles and others continued, but the academics remained concerned. Wiles and others raised personal grievances against their employer. The University engaged a firm to conduct a security audit and sought WorkSafe New Zealand’s contribution to that audit. Meanwhile Wiles continued to experience harassment. Once, when cycling to work in May 2022, a member of the public told Wiles something to the effect that she “sucked” and that “you’ll get yours”.  

From October 2021 the University raised concerns about the extent of Wiles’ media profile and whether it was carried out in accordance with the University’s Outside Activities Policy. The University’s position was that externally funded outside activities did not form part of Wiles’ work for the University, so the University did not have employer obligations in respect of those duties. Further, any external activities that did form part of her work needed to be approved by the head of Wiles’ department.  

At Wiles’ performance review in March 2022, she was advised to keep her science communications and other services commitments to one day a week. 

The claims

Wiles raised a number of claims against the University at the Employment Court. She claimed a personal grievance for unjustified disadvantage and alleged breaches of her employment agreement and the statutory duty of good faith. Her claims raised interesting issues as to the extent of an employer’s health and safety obligations, and the influence of tikanga on the employment relationship.

Unjustified disadvantage and health and safety

Wiles claimed the University breached the employment agreement by failing to comply with its health and safety policies. Judge Holden agreed that the University was contractually obliged to comply with its policies.  

The Court was critical that the University did not have a well-developed strategy for dealing with the abuse and harassment that arose, given this was already a known risk to the University. The Court noted that the abuse of academics was not new during COVID-19 and had already been well recognised by the University. Notably, the University had previously established a working group on harassment towards employees. Judge Holden said the University should have acted more quickly to adopt measures to deal with the situation that arose, and the onus was on them to do so. The Court said that the University should not have relied on staff members to suggest actions but should have proactively taken steps itself. 

Judge Holden commended the University for the actions it did take. However, these actions were not enough. The Judge concluded that the University did breach its health and safety obligations and that this unjustifiably disadvantaged Wiles. 

Treaty of Waitangi and tikanga

Wiles claimed that the University had breached its Treaty of Waitangi obligations by interfering with her ability to respond to Māori. The Court was not convinced of this claim because Treaty obligations were not imposed on individual staff, but rather on the University as an entity. Even if Wiles did have an individual obligation, the Court found that she had fulfilled this. 

Judge Holden accepted that the University was bound to act consistently with tikanga to the extent it applied to the employment relationship. However, she did not rule on whether the University had breached its obligations due to insufficient evidence. 

Academic Freedom 

The Judge disagreed that the University was trying to suppress new ideas, or controversial or unpopular opinions. Instead, the Judge, held that the University was trying to protect Wiles by having attention diverted from her. The public had multiple sources of advice available and would not have been disadvantaged had Wiles and her colleagues not commented as they did. 

Good faith 

The Court was critical of the change in tone of later correspondence from the University to Wiles. It found the University did not engage constructively in relation to Wiles’ safety or the way it raised and dealt with what it alleged was breaches of the University’s policies.  This was a breach of its good faith obligation to be active and constructive with Wiles. 

Remedies 

Wiles claimed damages and an award of compensation under the Employment Relations Act 2000 (‘ERA’). Judge Holden held that these remedies are not cumulative and, where both are available, the Court will adopt the higher of the two awards.

The Court awarded $20,000 as ‘general damages’ for the harm caused to Wiles. It noted that this award encompassed compensation under s 123(1)(i) ERA. 

No penalty was imposed for breach of contract as the Court considered that the breach was not intentional, and the University continued to improve. The Court also did not award a penalty for breach of good faith. This was because the breach was not deliberate, serious, and sustained, or intended to undermine the employment relationship.  

Takeaways

This case provides useful guidance on what is expected of employers: 

• Employers cannot be passive when it comes to protecting harassed employees. An employer cannot rely on affected employees to suggest or determine what steps should be taken.  
• Company policies can impose contractual duties on employers. Commitments such as ‘good employer’ statements may impose a contractual obligation to comply with policies. 
• Where employees make claims of breach of Treaty obligations, or tikanga, there must be sufficient evidence to support this. 
• Where there is a breach of contract and a personal grievance, the Court will not award compensation for both, but will adopt the higher of the two.