Covid-19 expert Dr Siouxsie Wiles is taking on the University of Auckland in the Employment Court this week.
The three-week hearing follows complaints to the Employment Relations Authority, claiming the university employer failed to respond adequately to safety concerns arising from harassment and threats from the public.
An earlier determination,in 2021, noted Sean Hendy (a professor at the university at that time) and Wiles (an associate professor) suffered “vitriolic, unpleasant, and deeply personalised threats” impacting their physical safety and mental health.
Wiles was the victim of “doxxing” - the act of publishing revealing personal details online - while Hendy was physically confronted at his university office. (Hendy is no longer part of proceedings. He resolved his differences with the university when he left for a new role with Toha NZ in October last year).
The university denies unjustifiably disadvantaging the academics or breaching its statutory obligations.
On top of determining the limits of the university’s obligation to respond adequately to safety concerns, the case spotlights academic freedom.
What is academic freedom?
Academia is unlike most professions, which typically bind employees through sweeping ‘don’t mar our reputation’ policies.
Instead, the Education and Training Act 2020 says universities are required to “accept a role as critic and conscience of society”. Academic freedom is defined as the freedom to question the status quo and put forward new ideas and opinions, irrespective of controversy or popularity.
As a concept, academic freedom prescribes universities and academics with protections to question the status quo without fear of retribution or government persuasion.
Professor Shaun Hendy, director of the research centre Te Pūnaha Matatini at Auckland University when the pandemic hit. He resolved his differences with the institution before departing for a new role with Toha NZ in October 2022. Photo / Greg Bowker
In 1997, the General Conference of the United Nations Educational, Scientific, and Cultural Organisation released its “Recommendation concerning the Status of Higher-Education Teaching Personel”.
“[The right to education, teaching and research can only be fully enjoyed in an atmosphere of academic freedom and autonomy for institutions of higher education and that the open communication of findings, hypotheses and opinions lies at the very heart of higher education and provides the strongest guarantee of the accuracy and objectivity of scholarship and research”, the recommendation reads.
What is not covered by academic freedom?
The leading case law stems from Rigg v University of Waikato in 1984. The case involved a dismissal linked to an article in the student magazine, Nexus, alleging the university failed to effectively oversee a laboratory, which possibly resulted in students dying of cancer. The article also claimed the university concealed the matter to safeguard its reputation.
The case clarified that academics could criticise universities, but could not do so willy-nilly.
Instead, academic freedom required elements of truth, sincerity or good faith, and consideration for others.
In 2006, Lally v The Vice-Chancellor Victoria University of Wellington involved an associate professor who was a support person during a disciplinary process. The academic later described the process as deficient in an email addressed to about 200 people.
The vice-chancellor didn’t ‘reply all’, instead writing a response to the associate professor acknowledging the academic’s right to raise concerns but taking issue with the nature of the delivery.
“You should be aware that if you breach this instruction then disciplinary action could follow,” the letter read.
The group of about 200 people received another email, this time including the vice-chancellor’s instructions.
Disciplinary action followed, and the applicant issued a personal grievance. Although the vice-chancellor’s instruction was deemed unreasonable, the ERA found the academic’s conduct didn’t constitute academic freedom as a disinterested observer could conclude the academic’s penchant to press ‘send all’ wasn’t “constructive nor intended to improve understanding”.
“[T]his is a case in which I would have no hesitation in otherwise applying 100 per cent contributory fault,” the determination read. Ouch.
Were Wiles and Hendy acting in a personal capacity?
These cases described what wasn’t academic freedom in the context of keeping academics in line, giving no insight into its parameters. In contrast, this month’s hearing is quite the headache.
Here, the University of Auckland has argued academic freedom would not apply because Wiles and Hendy’s Covid-19 commentaries were done in a personal capacity.
The 2021 determination highlighted a letter from the university that asked the academics to keep their public commentary to a minimum and to take paid leave “to minimise any social media comments at present”. Activity outside of work hours could - in theory - potentially limit the extent of the university’s duty to address safety concerns.
The counterargument involves the possibility that Covid-19 was academic freedom in action and central to the academics’ work. Any suggestions to limit commentary could be seen as an attempt to stifle said freedoms, with the added insult of being harmed in the process.
What does this mean? The Employment Court has its work cut out for it.
Wellington-based freelancer Sasha Borissenko did a law degree at Otago University followed by a master’s (hons) in journalism at Massey University.
