Background
Throughout the COVID-19 pandemic, Associate Professor Wiles was a core communicator, specialising in simplifying complex biological and chemical facts about the virus into information the public could understand. However, throughout this role, Associate Professor Wiles received abuse and harassment from some members of the public. This included online harassment and even resulted in “doxing” (the release of her personal information and her address online). Associate Professor Wiles was an employee of the University of Auckland through this time (and continues to be employed by them).
The University’s approach to protecting Associate Professor Wiles from this abuse was to advise her to avoid commenting on the pandemic and asserted this was outside of her role as an academic and employee of the University. They now have stated that this information dissemination was indeed part of her role, as conscience of the community. In July 2021, Auckland University began a safety and security audit, focusing on the harassment and threats of violence that some academic staff were receiving due to their public profile. In August of 2021, the Vice Chancellor wrote a letter to the parties urging them to keep any public commentary to a minimum until the investigative report was completed and raised the possibility that they take paid leave. No internal security review or individual risk assessment regarding Associate Professor Wiles was completed.
Findings
Judge Holden found that the University’s actions and inactions regarding Associate Professor Wiles’s concerns were not in line with the University’s obligation to be active and constructive in its employment relationship. While there should be some consultation with employees regarding actions that can be taken, in this case, the University personnel seemed reliant on the employees to suggest actions that the University could take to protect them. They also breached the contractual term to act as a good employer.
The evidence presented in court demonstrated that abuse of academics is not new. While the harassment that Associate Professor Wiles and others were receiving because of their commentary on COVID-19 may well have been worse than that previously experienced, the risk was already well-recognised. The University did not have a well-developed strategy for dealing with the issues that arose—which should be expected given that harassment was a known risk for academic staff, especially women.
Judge Holden declared that the University had breached its (express and implied) contractual obligations to protect Associate Professor Wiles’s health and safety. Further, she found that the University breached its statutory duties of good faith and to be a good employer by failing to engage in Associate Professor Wiles’s safety constructively and how it dealt with her alleged noncompliance with the University’s policies. The duty to be a good employer was also a term of the Collective Agreement and encompassed the University’s obligation to act in good faith toward the employees. Judge Holden also declared that the University breached its contractual obligations to be a good employer due to its failure to act in good faith.
The remedies issued to Associate Professor Wiles were compensation for the unjustifiable disadvantage she suffered and general damages for breach of contract. These awards overlapped with general damages covering the entire period, and therefore encompassing the distress caused by the unjustifiable disadvantage. Judge Holden awarded general damages of $20,000, including compensation for hurt and humiliation to Associate Professor Wiles. The breach of the employment agreement was unintentional, and the University continues to take steps to improve its response to these situations; thus, Judge Holden did not order a penalty for breach of contract.
Important takeaways from the case:
- It is essential to be responsive to potential risks that may arise out of an employee’s work as an employee
- Employers must be proactive in ensuring that health and safety duties are met when risks are presented
- Employers may be responsible for health and safety obligations even when work activities occur outside of work premises and hours