The Employment Court case between microbiologist Siouxsie Wiles and the University of Auckland could have wide-reaching ramifications.
NZ Herald legal columnist and host of the Chewing the Facts podcast Sasha Borissenko tells The Front Page that the impact of this legal matter could extend well beyond the remit of those directly involved.
“The case could really bring these issues to light,” she says.
“Universities across the country have been under a microscope with the strikes and the use of precarious contracts. You’ve got the issue of academic freedom and what the parameters of that are. And it also brings to light the level of harassment and the lack of framework for dealing with things such as online abuse or where we are in terms of hate speech.”
Many of these issues have been parked to one side, but this case will force the Government and businesses to pay closer attention.
“It really could change the name of the game. If it is found that the University of Auckland didn’t fulfil their obligations or do enough to protect their employees, that could have a huge flow-on effect for all businesses across the country.”
Part of the challenge will be to determine whether or not the commentary Wiles made in the media during the pandemic was part of her job. If it is shown that it was, then it becomes a question of what protocols an employer should have had in place to protect its employees from harm.
The question of what can be defined within the scope of work is more legally complex than one might imagine at first.
“The Employment New Zealand website has a lot of cases that try to define the parameters of what’s considered work or not work,” says Borissenko.
“It’s usually used to determine whether a dismissal was justified, so it’s really about finding out whether the connections can be made between an employee’s conduct outside of work and the job.”
Employers sometimes enforce these rules to ensure that employees don’t bring a business into disrepute outside usual business hours.
“It’s almost used as a tool to define what employees can or can’t do,” says Borissenko.
On the flip side, if something is deemed to be part of an employee’s job, then the employer does have some level of responsibility to ensure the safety of that employee. The tension often comes into play when it isn’t exactly clear whether the activities were part of the job.
“This is the fascinating tension,” says Borissenko.
“Where does the responsibility lie if there’s like a work party or if the conduct is conducted after work?”
The point here is that any employers with staff that could ostensibly take public-facing roles by sharing their expertise would do well to pay attention to what the court decides in this case.
At the very least, this decision will help outline the correct protocols to follow if a staff member ends up in a position where they face an onslaught of online (or real-world) abuse.
And given that we still see so little in the way of online moderation of social media or other platforms, it seems likely that Wiles will not be the last person to face this kind of online venom.
Listen to the full episode of The Front Page podcast to hear a full discussion on the potential fallout from this case.
The Front Page is a daily news podcast from the New Zealand Herald, available to listen to every weekday from 5am. It is presented by Damien Venuto, an Auckland-based journalist with a background in business reporting who joined the Herald in 2017.