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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.