WILES V UNIVERSITY OF AUCKLAND: A LESSON FOR EMPLOYERS AND PCBUs

Posted by DeAnne Brabant on September 3 2024 in News

The recent Employment Court judgment in Wiles v University of Auckland has raised some interesting questions for employers.

Associate Professor Siouxsie Wiles became a central figure during COVID-19 through her science communications on social media and in mainstream media. She was interviewed several times on television, and a documentary was also made about her. However, given the environment of the time and the vitriol being waged against those speaking about COVID-19, Wiles, along with other academic staff, suffered personal attacks and harassment, both online and in person. The University supported the commentary and expression of academic views.

Associate Professor Wiles raised a personal grievance with the University of Auckland, alleging that they failed to ensure her health and safety.  The Employment Court and ERA generally consider that the Health and Safety at Work Act 2015 is not within their jurisdiction, given that WorkSafe is the Regulator. While the judgment also dealt with the importance of academic freedom, it has some important findings for employers in the world of social media and armchair critics.

When it was brought to its attention the abuse that Associate Professor Wiles was suffering, the only steps the university took were to advise her to stop communicating about the pandemic, asserting that this was outside her role as an Associate Professor. However, before the hearing, the University accepted that she was acting within her role.

In July 2021, the University acknowledged that academic staff were being publicly targeted and abused but still failed to implement security measures. No risk assessment was conducted with respect to Associate Professor Wiles (or her family).

Findings

The Health and Safety at Work Act 2015 (HSWA) requires all Persons Conducting a Business or Undertaking (PCBUs) to identify and mitigate risks to employees (s.30) and take all reasonably practicable steps to ensure their health and safety. Harm in terms of HSWA includes psychosocial harm, and the University was required to avoid exposing employees to both physical and psychological harm.

Holden J found the University's acts and omissions were inappropriate and resulted in a failure to comply with its contractual and statutory obligations and act in good faith. In particular, the Court found that though the University had taken some steps to comply with its HSWA obligations, it did not act promptly enough. The Court found that it was well known that female academics were suffering from harassment, and this problem was not a new one. The University should have obtained advice about assessing the risks Associate Professor Wiles faced and addressing how to ensure she was safe and supported as she did her work, particularly when it was clear the levels of harassment were increasing. Holden J found that the University’s direction not to provide commentary was unreasonable, and the Associate Professor should not have been left to find her own solutions regarding the risks she faced.

Associate Professor Wiles was awarded $20,000 for hurt, humiliation, and grief under section 123 of the Employment Relations Act 2000. However, this was after a three-week trial, which would have been costly for all parties involved, and Associate Professor Wiles is unlikely to recover her full costs.

Lessons for PCBUs/Employers

PCBUs need to be mindful of the risks for physical and psychosocial harm that may arise from an employee undertaking not only their work but also when dealing with aspects of their role that are expected of them (especially in the case of academics).  When assessing the risk of employees becoming targets, a PCBU needs to consider that targeting could include coming into your workplace and filming employees while at work, stalking, threats, sexual harassment, adverse reviews of your services or company where the employee is identified (including harmful comments regarding their personal attributes), risks of targeted physical threats or risk of violence, harassment or digital harm.

As Dr Dawn Duncan, Faculty of Law, University of Otago, observed when commenting on the decision:

“This case is important for organisations where staff have public profiles or are engaging with traditional or social media. It confirms that employers have a legal duty to take all reasonable steps to protect their employees from harm, including mental and physical harm posed by third parties. Where employees are required to be in the public eye or have an online presence, they can face very real risks to their mental health and physical safety. Risks can include online abuse and harassment, disclosing personal information, stalking and threats of violence to themselves or their loved ones.”

Practical steps could include:

1. Assisting workers by engaging a lawyer, funded by the employer, to make NetSafe Complaints and to apply for takedown orders and/or issuing cease and desist notices, filing harassment complaints if the behaviour is repeated, and trespassing persons from your premises;
2. Increasing security in the workplace to ensure employees who have been or are likely to be targeted are kept safe while at work;
3. Talk to the police and ask for a risk assessment to be undertaken regarding whether or not there is a real risk of harm and also ask what steps can be put in place if an actual (not perceived) risk is identified;
4. Assist and support workers to report harassment and other offending to the Police;
5. Ensure that specialist advice from a counsellor/psychologist is obtained in order to ensure the appropriate support is provided to the person(s) and/or family members who have been targeted; and
6. Consult with employees about the likely risks in the workplace and discuss the steps that can be taken to address those risks. Ultimately though, while worker engagement is required, the onus is on the PCBU to ensure that they have taken all reasonably practicable steps to ensure the health and safety of workers.

If you would like to discuss how to manage the risk of psychosocial harm, online media targeting of your workers, takedown orders, or any other health and safety matters, please do not hesitate to contact DeAnne Brabant.

DeAnne Brabant | Partner | deanne.brabant@shieffangland.co.nz