Introduction

In August last year, the Employment Court issued a decision involving Associate Professor Siouxsie Wiles’ Personal Grievance Claim against her employer, the University of Auckland (the University).

This case highlights the extent to which employers’ obligations under Health and Safety apply to an employee who is the subject of vitriol in social media, as a result of her activities as an employee.

Events

With the arrival of the COVID-19 pandemic in New Zealand, specialised academic experts became well known through the media as a result of their commentary on the COVID-19 pandemic via mainstream media outlets.

One of those academic experts was Siouxsie Wiles, who was an Associate Professor at the University of Auckland.

The essence of the personal grievance complaint made against her employer, the University of Auckland, was that the University had failed to protect her from threats made, in particular on social media platforms, following her commentary on the COVID-19 pandemic and the need for vaccination.

The threats could only be described as vitriolic and violent. Associate Professor Wiles was placed on the “Nuremberg List” whereby she received a “Cease and Desist Order”. It was alleged that she would be subject to trial where the outcome from the charges faced could be imprisonment and execution.

Associate Professor Wiles was then advised by a journalist that her personal telephone number, personal email address, home address and a photo of her home had been posted on a website opposed to the Government’s dealing of the pandemic, which the Police described as ”doxing”.

None of this was isolated in nature. It was a sustained pattern of threatening vitriolic behaviour over a significant period of time.

The University had, at one point, stated that her commentary did not form part of her job description and it was only in the latter part of July 2021 that the University arranged for an external provider to undertake a Security and Safety Audit.

That Audit and the implementation of the recommendations were not completed until October 2023.

There was also a lack of individual risk assessment for Associate Professor Wiles.

The University had also initially seen Associate Professor Wiles carrying out certain interviews in her personal capacity, as being a “Celebrity Speaker”.

Legal Issues

The essential argument on behalf of Wiles was that the University had failed to provide a safe working environment, therefore breaching its Health and Safety obligations, and secondly had failed to engage in constructive communications regarding her safety.

The University’s initial response was to minimise public commentary, which they later accepted was the incorrect approach to take. Associate Professor Wiles was within her rights to make public commentary. Public commentary on matters of public interest, by people who hold an area of expertise, is a common activity.

Decision

It was acknowledged by the Employment Court that the University was in a difficult position in the context of the COVID-19 pandemic, where there was significant pressures and stress placed upon the University.

However, the Court ultimately found the University’s response to be inadequate. Specifically, the University failed to communicate with Wiles about her safety, and its initial claim that she should stop making public comments—arguing these were outside her duties—was incorrect.

An award of $20,000.00 for general damages was made for unjustifiable disadvantage and the University was ordered to pay Wiles over $205,000 in legal costs.

Outcome for Other Employers and Impact of this Decision

The actions of Associate Professor Wiles in making public comments about the pandemic and the need for vaccination were within her expertise and it was accepted would have been part of her employment.

The repeated abuse received online were personal attacks upon Associate Professor Wiles and were not met by the University by putting in a Health and Safety Plan to protect Associate Professor Wiles from such commentary.

Social Media

Although this was said in a University context, it can be contemplated that these principles will be applicable to all employers, particularly those that have employees where they are required from time to time to make comments on main stream media platforms, whether that be on-line or through radio or television, which are then the subject of vitriolic responses directed personally at that employee.  At that point there is a positive obligation to respond and protect the employee from such vitriol as is reasonable and able to be achieved in the circumstances, that may exist.

If you have any questions or concerns about the employment law, please do not hesitate to contact Jeff McCall, Principal (03 925 7951/ jeff@mmlaw.co.nz) or any of our employment law team.