There will no doubt be employers who have been keeping an eye on Stuff’s livestream of the Wellington protest to see if they can spot their employees. Other employers have been warning employees not to become involved in unlawful activities relating to the occupation.
This raises an important question as to what freedom employees have to do as they please in their own time, and at what point their actions tip over into becoming an employment issue.
Freedom to protest is a fundamental human right in New Zealand. It is protected by the New Zealand Bill of Rights Act as part of the rights to freedom of thought, conscience and religion, freedom of expression, freedom of peaceful association, and freedom of peaceful assembly.
Therefore it would be unlikely in most cases that an employer could discipline or dismiss an employee for engaging in legitimate peaceful protest, regardless of how much the employer disagreed with the protestors’ views.
Even where the subject matter of the protest crosses over into an area of interest for the employer, provided the protest is lawful, and the employee participates in their own time, it is unlikely that an employer will be able to object. An example of this is an old case involving North Shore City Council where one of its employees wrote letters to the newspaper complaining about the council and was dismissed. He argued that he was entitled to freedom of thought and freedom of expression as a ratepayer and that this was separate from his role as a council employee. The Court held that it was a “fine line” case but the employee’s actions were not so profound that they should amount to a failure in the employment relationship.
As the Court noted, that case was a line call and there may well have been a different outcome if the employee held a senior or front facing role and their credibility in undertaking that role was undermined by their participation in the protest. For example it would be difficult to see how a person employed to promote public health initiatives relating to the covid outbreak could credibly continue in this role, whilst also publicly engaging in the protest.
In most cases, however, the key issue will be whether the protest, and the employee’s actions in that context, are lawful. In the case of the Wellington protest, there is little question that the actions of many protestors have well and truly crossed this boundary. Given this, there may well be grounds for employers to take action against participating employees, either on the basis that they have engaged in unlawful conduct and/or that they have brought their employer into disrepute.
However, care needs to be taken by employers to restrict their assessment to the actions actually taken by an employee, and not to view these actions through a lens of judgment relating to the reason for the protest. Again, the right to protest itself is lawful, as opposed to the actions of some within that protest.
Further, the threshold for establishing that an employee’s actions have brought their employer into disrepute, are reasonably high. In a case relating to the Christchurch Press in 2000, an employee of The Press approached a co-worker and suggested going out for lunch together, before proceeding to drive the co-worker back to his house and sexually harassing her. The employee was subsequently dismissed for serious misconduct.
A claim was bought by the employee for wrongful dismissal which was rejected by the Employment Court on the basis of the “but-for test” which asked whether the sexual harassment would have occurred but for the plaintiff’s employment. It was found that the employee was acting in the course of his employment and his conduct adversely affected the working environment, thus justifying the dismissal.
On appeal to the Court of Appeal, the Court found that the matter comes down to the impact or potential impact of the conduct on the employer’s business, “whether that is because the business may be damaged in some way; because the conduct is incompatible with the proper discharge of the employee’s duties; because it impacts upon the employer’s obligations to other employees; or for any reason it undermines the trust and confidence necessary between employer and employee”. The Court of Appeal upheld the Employment Court’s decision that there was no wrongful dismissal.
One case that provides a relevant comparison involved the New Zealand Clerical Workers Union. A union organiser was arrested for spray painting anti-Employment Contracts Act slogans and using a union car for transport to the scene of the painting. Police had executed search warrants for the employee’s home, the union car and union offices, but he had failed to advise the union of this. The Court found the dismissal to be justified on the basis that the protest was unlawful and the employee had brought the union into disrepute.
Given the strategic and relatively hands-off approach that has been taken by law enforcement too date, the Wellington protestors may think that there is some kind of “immunity” bubble around them that will safeguard them from the consequences of their actions. They should not assume this, because participation in unlawful activities may ultimately result in both criminal and employment consequences.