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Can you be sacked for speaking out? Well, it depends on the circumstances

Most people will only have heard of Lee Williams and his right-wing views following a highly public and widely reported confrontation with the ACT party leader David Seymour. This took place at an ACT​ event in Ashburton relatively recently.

ACT leaderWilliams had been dismissed from dairy company Synlait for expressing extreme views on social media and was seeking support from Seymour on the grounds of his right to freedom of speech. In addition to working for the dairy company, Williams runs a YouTube channel that posts far-right content.

A petition was launched online calling for Synlait to stop employing him. The petition said: “Lee has been responsible for disseminating extreme white supremacist material, and has consistently been reported for creating objectionable and racist media for his channel.”

Reference was also made to him directly attacking Māori MPs in the petition. He lost his job following the petition.

Williams confronted Seymour about his dismissal in Ashburton and the interaction was posted online.

Williams accused Seymour of “saying it is OK if 10,000 people signed a petition to get a man sacked from his job and destroyed and cancelled – you're saying that’s OK”, and of not “standing up for freedom”.

He called Seymour a “fake” and “a bloody fraud” and said “Māori will own 50 per cent of the country by 2040”.

But was Williams’ dismissal fair and reasonable, if he was dismissed for the reasons he has alleged?

It is not clear if he has challenged the dismissal, but there have been other cases where people have challenged their dismissal for speaking out publicly.

Whether the dismissal is fair and reasonable really does depend on the exact circumstances. The cases go both ways.

In one case, John Dryden worked for the Radio Network of New Zealand Ltd as a breakfast host on Radio Forestland until his dismissal.

The letter of dismissal said Dryden failed to act in a professional and appropriate manner, his actions brought the employer into disrepute, and he failed to follow a lawful and reasonable instructions.

The employment relationship took place within the small community of Tokoroa.

The allegations arose following a general meeting Dryden had attended about a local matter. The meeting had been chaired by the mayor of Tokoroa. The radio station had a relationship with the mayor and obviously with the community.

At the meeting Dryden repeatedly talked over the mayor, demanding he answer a question. Witnesses also viewed his conduct as inappropriate and unprofessional towards his manager when she approached him about his conduct at the time.

Dryden attempted to defend his conduct on the basis that he was at the meeting in a personal capacity as a citizen of Tokoroa and that his actions could not have impacted on his employer.

However, the Employment Relations Authority found Dryden was “clearly recognisable as being the Breakfast host on Radio Forestland” and that his conduct brought his employer into disrepute.

The authority found his dismissal was justified.

On the other hand, Teeny Lowe succeeded in a case for unjustified dismissal against the Tararua District Council for her actions at a community meeting.

She was a community development adviser and her employer was proposing to restructure the delivery of community development assistance and reduce funding.

They wanted to set up a trust to deliver the services and reduce the council’s contribution by $20,000. These changes would result in the early termination of her role.

The council called a town meeting to discuss the proposed trust and how community development could best meet the needs of the community.

At the meeting, Lowe was asked to give her opinion. She read a prepared statement to the effect that the trust had “little credibility and no future” and she would not be involved with that, but would remain in her position with the council until the expiry of the contract.

Lowe challenged her dismissal in the Employment Court, but unlike Dryden she was successful.

The court held it was not reasonable to require Lowe to take a neutral stance to the trust proposal at the public meeting as she was directly affected by it, and her role in it was pivotal.

Lowe was at the meeting in her official capacity to make a contribution to the debate about the proposed policy and she was entitled to express her opinion.

Under the Local Government Act, the council was required to act in the public interest. Prior instructions to keep the information she held confidential had clearly expired, the court held. The reasons given by the council for her dismissal were not justified.

Lee Williams seems to be a long way from what happened at the Tararua District Council meeting, but as you can see from the cases, the courts will decide each case on their merits.

It is hard to see Williams getting support for his extreme views. The royal commission into the mosque killings in Christchurch had a section in its report dealing with the importance of social inclusion for minority groups.

Racist or divisive views do nothing to help the social inclusion of different ethnic groups in this country. Social inclusion is certainly something most of us want.

The fact a petition was raised against Williams and submitted to his employer is certainly evidence that his actions were being connected to his employer.

As seen in the case of Dryden, this could certainly support a claim any dismissal was justified. Whether what Williams said justified his dismissal is a matter for the courts to decide, and it will depend on all the circumstances.

Seymour said it well when he told Williams he had a “choice” and was now facing the consequences of his actions.


Keeping you up to date – what you need to know

In our March newsletter we analysed the Final Report of the Holidays Act Taskforce after it was released by the Minister for Workplace Relations. All the recommendations have been accepted by the Government. While we wait for the legislation to implement these changes there has been further tinkering with the Holidays Act that you should be aware of:

Holidays Act Taskforce Final Report

Increased sick leave

The minimum sick leave entitlement for employees increases from 5 days to 10 days per year from 24 July 2021.

Most employees who have worked for an employer for six months or over are entitled to sick leave if they, or a dependent, are sick or injured. Employees will get the extra five days when they reach their next entitlement date – either after reaching 6 months’ employment or on their sick leave entitlement anniversary (12 months after they were last entitled to sick leave).

Employees who already get 10 or more sick days a year will not be affected by this change.

The maximum amount of unused sick leave that an employee can be entitled to will remain at 20 days (although some employees have a contractual right to accrue more sick leave if it is untaken).

Bereavement leave

Losing a baby is very hard and unfortunately quite common (around 1 in 5 pregnancies end in miscarriage). Miscarriage is most common in the first 12 weeks of pregnancy, but can happen up until 20 weeks. Losing a baby after 20 weeks is a stillbirth, which is much less common than miscarriage (it affects about 1 in every 200 pregnancies).

From 31 March of this year the law change allows an employee to take up to three days’ paid bereavement leave if they or their partner experiences a miscarriage or stillbirth. People planning to have a child through surrogacy or adoption are also eligible if the pregnancy ends by miscarriage or stillbirth.

Bereavement leave gives an employee time to grieve and to take care of matters to do with the bereavement. This can be taken at any time and for any purpose relating to the death, miscarriage or stillbirth, and does not have to be taken straight away or on consecutive days.

The existing rules on bereavement continue to apply. Employees become eligible for bereavement leave after six months. Employees are not required to produce proof of pregnancy, miscarriage or stillbirth. The law change does not provide bereavement leave for terminations. Depending on the circumstances, mothers may be eligible to use sick leave following a termination.

Further possible change – parent-teacher interviews

A Member’s Bill to amend the Holiday Act to include parent-teacher interview leave has had its first reading in Parliament. If passed in its draft form, it will allow employees with children to take paid leave to attend parent-teacher interviews during the employee’s normal working hours.

The Bill proposes that the employee will become entitled to the leave from their first day of work and they may take up to 4 hours’ leave in each 12-month period of current continuous employment. Unused leave will not be carried forward and will not be paid out on termination of employment. The employee will be paid for each hour of parent-teacher interview leave, calculated as a pro rata proportion of the employee’s relevant daily pay or average daily pay.

A “parent-teacher interview” means a meeting between a parent and a teacher about a child’s learning progress. It does not include a meeting between a parent and a teacher about a disciplinary matter relating to a child.

If passed, the Bill is likely to come into force later this year.

Conclusion

Make sure your business and its’ managers are aware of the changes (and alerted to possible further changes). Make sure your policies and any systems are updated.


What do the courts say on transgender rights?

Transgender members of our community are becoming more assertive as they gather confidence, respect and support. In the sporting arena we have the case of Laurel Hubbard being selected for the New Zealand Olympic team.

Laurel HubbardShe is set to become the first recognised transgender athlete to attend the Olympic Games next month. There has been a petition presented to Parliament recently calling for more consultation on Sport New Zealand’s guiding principles for transgender inclusion in community sport.

An open letter from more than 70 former Olympic and elite athletes was sent to Sport Minister Grant Robertson outlining concern about transgender inclusion. The athletes argued that the inclusion of transwomen athletes who have transitioned after puberty raises issues of fairness and safety in sport.

Robertson pointed out that the rules for elite sport and community sport were different. He said it was important we respected the rules and criteria set by the International Olympic Committee and the International Sporting Federations on the issue of transgender members of society in sport.

There has been little litigation in New Zealand on the issue, but the rights of transgender people have been the subject of litigation particularly in the United States, but also in the United Kingdom.

Several years ago, a transgender student in the US brought a challenge against his school’s policy that he could not use the boys’ bathroom. In a victory for transgender rights, the Court of Appeals for the Fourth Circuit found that Gavin Grimm was discriminated against by the policy.

The school sought to appeal the decision to the US Supreme Court, but its application was denied. As a result, the earlier decision stands, although the refusal of the supreme court to directly rule on the matter means more cases are expected from conservative states.

One of the areas of tension around transgender rights is the issue of misgendering, where people refuse to use the preferred pronouns of the transgender community.

The UK Employment Appeal Tribunal recently decided the case of Maya Forstater. Forstater held gender-critical beliefs which included the belief that sex is immutable and not to be conflated with gender identity.

She had been a researcher, writer and adviser on sustainable development. She worked as a visiting fellow and was an active presence on social media in her personal capacity. She regularly posted comments relating to the transgender debate.

Forstater posted several tweets that opposed proposed UK legislation which would have made the legal recognition of self-identified gender easier. She complained that women and girls would lose out on privacy if “males”, as she put it, were allowed into changing rooms, dormitories, prisons and sports teams.

Her comments led to some of her workmates complaining about her comments being offensive. Following an investigation, her visiting fellowship was not renewed.

Forstater brought an employment claim that she was discriminated against because of her beliefs.

The preliminary issue before both the Employment Tribunal and the Appeal Tribunal was whether her belief was a “philosophical belief” within the meaning of section 10 of the UK’s Equalities Act. If her belief was a philosophical belief, that would provide her with protection for expressing views which might otherwise be a basis for termination.

The term has been defined in case law in the UK as a belief that “must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of the others”. The Appeal Tribunal did not want to set the bar too high.

It said for the Employment Tribunal to exclude the protection, it would “have to be satisfied that the belief in question or its expression gave rise to the gravest form of hate speech, was inciting violence, or was antithetical to the [European] Convention [of Human Rights] principles such as Nazism or totalitarianism”.

The Appeal Tribunal held that Forstater was entitled to the protection of the law because of her philosophical beliefs. The Appeal Tribunal observed that the complainant believed it was not “incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender”.

The Appeal Tribunal added that “the potential for offence cannot be a reason to exclude a belief from protection altogether”.

In its conclusion, the Appeal Tribunal reiterated that its judgment did not mean that it expressed any view on the merits of either side of the transgender debate and nothing in its decision should be regarded as it doing so. The judgment did not mean that those with gender-critical beliefs could misgender transpersons with impunity.

Forstater, like everyone else in the UK, will continue to be subject to prohibitions on discrimination and harassment under the relevant legislation. Whether or not conduct amounts to harassment or discrimination will be for the tribunal to decide in each case.

The judgment furthermore does not mean that transpersons do not have protections against discrimination and harassment conferred by the legislation; the Appeal Tribunal says “they do”.

The judgment also does not mean that employers and service providers will not be able to provide a safe environment for transpersons.

Here in New Zealand, bills touching on the issue of gender identity have come before parliament twice, most recently in 2017. The first would have expressly amended the Human Rights Act to expressly prohibit discrimination on the basis of gender. The bill did not proceed, but a Crown law opinion in 2006 affirmed the view that discrimination on the basis of sex included gender identity.

The 2017 bill related to the registration of births, deaths and marriages and did not initially consider gender identity issues. They were raised during select committee, and the bill was withdrawn to allow further consideration of the legal implications around self-identification. A further bill will no doubt arise in the relatively near future.

We live in a changing world. As our society becomes more diverse, it is important to recognise and value the positive differences that are emerging. As we change, respect and tolerance will become ever more important values.


Truckie sacked for sharing Stuff story with workmates

What can and can’t be said can be a source of friction in many workplaces, especially when it concerns workers’ rights.

Employees want to be able to speak frankly about the issues affecting them in the workplace and to support each other. On the other hand, employers often want to manage those conversations to maintain harmony in the workplace.

Coronavirus stuff storyOccasionally tempers can fray regarding these conversations and matters go before the Employment Relations Authority or Employment Court.

Recently the authority heard one such case from a truck driver who was dismissed at the start of the Covid-19 lockdown.

Leading up to the dismissal, the employer created a WhatsApp group for communication between its seven drivers.

On March 23 last year the driver posted a message on the WhatsApp group which linked to a column on Stuff by an employment lawyer. The article discussed employer liability when employers were unable to provide work during lockdown.

The driver’s message to the WhatsApp group included a headline or excerpt from the column which read: “if an employer is not able to provide work due to a government shutdown, they will still likely be required to pay their employees”.

The worker’s contribution to the chat group did not go down well with the employer. Indeed, he was given notice of dismissal through the same WhatsApp group to all drivers, 20 minutes later, without any process being followed first.

All of this happened on the day the lockdown was announced by the prime minister, to take effect two days later.

While the employer gave different reasons for the dismissal, the authority held that the decision to dismiss was really an act of reprisal for the truck driver sending around the article.

In fact, the authority found that the notice of dismissal was given over the app so other workers could see he was dismissed for expressing those views.

The authority held that without giving the driver an opportunity to respond to concerns, the decision was not one a fair and reasonable employer could make. But the authority also said that on the evidence before it, dismissal was not an option available to the employer (even if a process was followed).

The truck driver was awarded $10,000 compensation for hurt and humiliation, along with lost wages and other remedies.

The authority has made clear that workers are entitled to discuss their rights with each other within the workplace.

However, there a limits to how those matters can be discussed.

Nearly a decade ago the Employment Court heard the case of an Auckland port worker who wrote a confrontational column in a union magazine. He was seeking reinstatement after he had been dismissed because of the article.

The employer took action after other employees raised concerns the article was “disgusting”, “racially divisive” and insulting, and contained sexual innuendo referred to Nazis.

The article also referred to a “subservient workforce” and “mid-management morons”. The employer received 11 complaints about the article. During the hearing, the port worker accepted the column raised concerns about previous managers and concerns about the employment of workers from Tuvalu.

The worker sought orders that he could return to work before the trial on his case, but the court declined. The court acknowledged that it was “incontrovertible” that a union worker was entitled to express and hold views at odds with the employer, and that displeasure at what an employee has to say was not a ground for dismissal.

However, the court held that it was strongly arguable that the worker’s actions caused significant offence and upset to a number of people, and that his actions detrimentally impacted on the employment relationship.

The court also said it was strongly arguable the comments called into question the worker’s ability to discharge his duties and were properly the subject of disciplinary action leading to dismissal. The fact the worker was a union official was a weak argument it said.

Fundamentally, what workers can and can’t say about their employer or their rights in the workplace comes down to reasonableness.

Workers are allowed to discuss their rights and any employer that attempts to stop that will be treading on thin ice. But that does not give employees a right to say as they please.

A line is crossed when employees step into the realms of personally attacking others, especially where those attacks are insulting, racist, or have a sexual element.

Both sides of the employment relationship should always work hard to maintain a respectful and productive employment relationship.