Knowledge The COVID-19 pandemic, as a serious matter of public health and safety, has generated widespread publication of personal and professional opinions. There have been several recent incidents which have raised questions about the intersection of employment obligations and publicly-voiced opinions.
Expression of views in a professional capacity
Well-known commentators, Professor Shaun Hendy and Associate Professor Siouxsie Wiles have brought claims against their employer, the University of Auckland. The two employees have made similar claims that the University has failed to ensure their safety after they received increasing harassment, online and in person, for opinions they shared that related to COVID-19.
Both Professor Hendy and Associate Professor Wiles have successfully applied to have their matter heard by the Employment Court in the first instance as:
- there is an important question of law to be answered in the matter;
- it is in the public interest to be heard by the Court in the first instance; and
- the Employment Relations Authority was of the view that the matter should be decided by the Court.
Use of a work email address to express personal views
Late last year, a senior Southern District Health Board Member resigned from her position after she sent emails to Countdown that criticised the company’s vaccination policy, and those emails were subsequently made public. The Board Member, who had sent the emails from her SDHB email address, received criticism for using her position to add weight to her personal opinion. Though an elected member and likely not an employee of SDHB, the facts assist us in exploring how the expression of personal views can be problematic for one’s employment.
Employee’s social media activity
Media outlets often invite public comment on their articles via social media, particularly in COVID- 19 times. In some instances, employers have the ability to investigate an employee’s personal activity on social media as a disciplinary matter. Activity such as liking or commenting on another person’s post, where the content endorsed is inconsistent with the employee’s obligations to their employer, could give rise to allegations of misconduct or serious misconduct.
We recommend that employers who are concerned about their staff’s social media activity seek specialist employment law advice about the best way to address the issue. Steps could include creating or updating a Social Media Policy that sets out clear expectations.
Employees who hold public or senior positions should be aware that their actions will be more closely monitored due to the more direct link and impact on the employer. A higher standard of conduct is also expected of employees who frequently engage in matters that are the subject of public opinion.
Whether public commentary is deemed part of the employee’s role is a significant consideration of how an employer would address public comment or an expression of a personal view.
The SDHB Member did not dispute that voicing her opinion was outside of her professional role with the SDHB, yet she used her position to add sway to her comments. The implication of this is that her actions, had she been an employee and not resigned, would likely have constituted misconduct.
Key considerations for employers encouraging public comment by their employees
On the other hand, Professor Hendy and Associate Professor Wiles argue that their roles as academics require them to provide public commentary, particularly as their expertise relates to a serious matter of public health and safety. They also argue that the University has failed to take action to protect them from the public backlash and harassment they suffered as a result of commenting on COVID-19 matters. The claims stemming from this include:
- personal grievances for unjustified disadvantage;
- a breach of the employer’s good faith obligations under the Employment Relations Act 2000; and
- a breach of the employer’s obligations under the Health and Safety at Work Act 2015 and their Collective Employment Agreement.
Central to the case is whether public commentary constitutes ‘work’. If the Court finds public commentary falls within the employee’s work, the employer will be subject obligations to protect the employee. This case will provide useful guidance on the extent of an employer’s obligations to ensure employees’ health and safety concerns are appropriately addressed. We will provide updates as they become available.
Disclaimer: This information is intended as general legal information and does not constitute legal advice. If you have a specific issue and wish to discuss it get in contact with the Black Door Law Team.