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When is honest opinion really defamation?

Date: 12/07/2018

In New Zealand freedom of expression is considered a fundamental human right – it is for this reason that it is enshrined in our Bill of Rights Act.

But that doesn’t mean people can say whatever they want without consequence. There are a number of checks and balances on the right to express yourself, including the law of defamation.

Broadly speaking, defamation is where someone publishes a false statement about another person which damages that person’s reputation. It is a defence to a defamation claim where the statement made is true, is an honest opinion, is privileged, or the person had consent to it.

In the employment context, claims of defamation are not uncommon and can arise in a number of contexts.

The first is where an employee makes false statements or complaints about another employee which besmirch that employee’s reputation. An employer may be justified in taking disciplinary action against the employee concerned.  They may also be subject to defamation claims pursued against them by the person who has been wrongly maligned.

In Sheerin v Jamieson Castles Barristers and Solicitors, a legal secretary, Bronwyn Sheerin, was dismissed from her job for starting a rumour that one of the partners of the law firm was having an affair with another secretary. Despite receiving a series of warnings, Sheerin continued to spread the gossip in email messages and conversations over a number of months. The employer had enough and decided to dismiss Sheerin, who then raised a claim of unjustified dismissal.

The Authority upheld the employer’s decision to dismiss Sheerin and stated that even if there had been an affair, Sheerin’s behaviour would have been “inexcusable and totally unacceptable”. While Sheerin lost her job, she was lucky to avoid a claim of defamation as it appeared she had made false and derogatory comments about her boss in emails to other colleagues.

It’s not only employees who need to take care over what they say – an employer may also put themselves at risk of legal proceedings if they make false statements about an employee.

This issue is currently before the courts after a former deputy court registrar and employee of New Zealand Police, Melissa Opai, sued Police for comments made by her former manager, which she claims were defamatory. The comments were made in a draft performance appraisal, an internal briefing paper, a complaint about Opai, and diary notes.

In particular, Opai took umbrage with a comment in her performance appraisal that her "sense of responsibility can be misdirected and be viewed by other[s] as malevolence, or ill will".

Opai claims that the comments made about her were false, tarnished her reputation, prevented her promotion and resulted in her being ostracised by her colleagues. Police denied that the comments were defamatory and stated that they were made by the manager as part of their job to assess the performance of staff.

While originally claiming $280,000 in damages against both her former manager and the Attorney General, on behalf of the Commissioner of Police, Opai’s claim against her former manager has since been dismissed by the High Court.

While the outcome of the case against Police has not yet been determined, it raises interesting issues from an employment perspective.

In an employment relationship, being able to make free and frank comments about an employee’s performance is part of a manager’s role. Whilst many employees may not agree with or like what they read in their performance appraisal, such comments are unlikely to be defamatory if they represent an honestly held view about the employee’s performance.

Issues may also arise where false statements are made in dealings between an employer and a union. Whilst unlikely to result in defamation proceedings, which can only relate to comments made about individuals, false comments made by an employer or union about each other, could be in breach of the Employment Relations Act.

This is because the Employment Relations Act provides that the parties to an employment relationship must not do anything (which includes making any statements) which may mislead or deceive one another.  

However, this does not prevent parties from making a statement of fact or opinion which is reasonably held. In one case, an update published by a union which disparaged the employer’s terms and conditions of employment, and criticised the employer’s attitude towards the union, was not considered misleading or deceptive, as it was a statement of fact or opinion reasonably held.

At the heart of the employment relationship is the requirement to act in good faith. This includes not making false statements, complaints or misleading each other. For an employer, managing false complaints or malicious office rumours can be incredibly difficult. For an employee, being the subject of gossip can create stress and anxiety, and result in serious reputational damage.

Whilst an employer can attempt to manage these situations by taking disciplinary action, in many cases the damage is already done. In extreme cases, a wronged employee may seek redress for the harm that another employee or their employer has caused them through a claim of defamation.

The key takeaway is this – while people have a right to express their honestly held views and opinions, this does not extend to unreasonably destroying another person’s reputation. Comments that are made maliciously, recklessly, or without any reasonable foundation, are likely to overstep the mark.