New COVID-19 employment case indicates employer’s health and safety obligations to protect employees may be expanding

Does providing public commentary constitute work? A recent Employment Relations Authority (“the Authority”) case suggests it can and highlighted the expectation on employers to take extra health and safety steps for staff if such commentary is resulting in employee harassment[1] .

Background:

In 2021, both Dr Siouxsie Wiles and Professor Shaun Hendy (“the applicants”) brought separate claims against the Vice-Chancellor of the University of Auckland (the University”). Their claims alleged ongoing unjustified disadvantages at work arising from the University’s failure to appropriately address their safety concerns.

The applicants and many others have kept Aotearoa updated throughout the COVID-19 pandemic. However, perhaps unsurprisingly in the existing climate, this information is not always well received. In response to the applicant’s public commentary regarding the pandemic, the applicants say they have suffered threats and harassment via email, social media, video-sharing platforms and in-person confrontations. The level of harassment the applicants have faced has gradually become more extreme.

The applicants claimed that as part of their role at the University, they are expected to provide public commentary and that their experience is relevant to serious matters of public health and safety. However, the applicants alleged that they are suffering ongoing unjustified disadvantages, arising from failures by the University to appropriately address their safety concerns. The applicants claim that the University has failed to take proactive action to protect them from the abuse and harassment.

The University denies unjustifiably disadvantaging the applicants and breaching its statutory obligations. It claims to have acted in good faith towards the applicants.

Obligations under the Health and Safety Work Act:

Under the Health and Safety Work Act 2015, employers must take all reasonable steps to provide a safe working environment. Although the University had taken steps, the applicants asserted these steps were insufficient and the University never dealt with the main issues of primary concern, being:

1. Were the individuals making threats against the applicants likely to follow through on such threats?; and

2. If so, what protective systems would the University put in place to prevent the applicants from harm as a result of their public COVID-19 communications?

The University countered that public commentary was not a part of the applicants’ roles as employees. However, the applicants argued that the University is statutorily required to promote community learning, science, communication and research for COVID-19 as that is directly funded by the New Zealand Government under contracts with the University.

Question of Law:

The Authority confirmed that the applicants’ case involved a relevant question of law from an overall public interest perspective, particularly those in employment relationships where a role may involve public communications i.e. journalists, academics, advertising, media, that attract harassment or a potential risk of harm to those employees.

Given the almost inevitable challenge that the unsuccessful party in these proceedings would bring to the Employment Court and the strong public interest, the Authority referred the matter to the Employment Court.

What does this mean for employers?

Whilst the Authority did not determine the issue, it indicated this matter will likely come down to an assessment of disputed statutory and contractual obligations as opposed to disputed facts.

Ultimately, this case will turn on the application of the Health and Safety at Work Act 2015 and the applicant’s individual employment agreements.  Every employer must provide a safe work environment to their employees while employers are under a duty to eliminate risks to health and safety as far as reasonably practicable or where this is not possible, to minimise those risk as far as reasonably practicable.

It will be interesting to see where the Court draws the line for employers on the safe work environment obligations to employees.  The decision will interest many employers in the Covid-19 environment.

A clear understanding of an employer’s obligations under the Health and Safety at Work Act 2015 and your employee’s terms of employment is  crucial to reducing the risk of costly legal proceedings.

If you would like to discuss  your Health and Safety obligations under the Health and Safety at Work Act 2015 as an employer, please contact Jaesen Sumner, Jordan Todd, Ruth Williams, or Caylee Wood.

[1] Hendy v Vice-Chancellor of The University of Auckland [2021] NZERA 586.