A New Plymouth nurse, Deborah Hugill, was reported to the Nursing Council by one of her colleagues for making racist comments on Facebook that were later shared on the New Zealand Nurses Organisation public page.
In her posts, Hugill claimed that “Maori predominantly get more handouts & freebies in Nursing + Education + workforce”, and that her Māori colleagues “sit on their fat asses all day”, were lazy and thieves. Hugill appeared before the New Zealand Health Practitioners Disciplinary Tribunal, where she denied that she was racist, claiming that the statements she made were true.
The Tribunal assessed Hugill’s actions against the relevant legislation, as well as the Nursing Code of Conduct and Social Media Guidelines, ultimately concluding her conduct did not meet the required standards. Hugill was consequently suspended from practising as a nurse for two years. Following that, if she wishes to practice again, she will be required to fulfil certain conditions, including undertaking cultural competency training.
The New Zealand Bill of Rights Act 1990 affirms that all New Zealanders have a right to freedom of expression, even where that opinion, thought, or belief might be unpopular, distasteful or contrary to the views of the general public.
However, this right is not absolute, and comes with a number of limitations, including under the Humans Rights Act 1993 which confirms that ‘hate speech’ that is “threatening, abusive or insulting” and directed at race or colour, or national or ethnic origins, is an offence.
Workplaces are often made up of employees who have different backgrounds, views and values which can help create a diverse and dynamic workforce. However, it can also create issues if those differences result in conflict, and the expression of views that others find offensive.
The Employment Relations Act 2000 provides that where a person directly or indirectly expresses hostility against, or brings into contempt or ridicule, another employee on the ground of the race, colour, or ethnic or national origins of that employee, within a workplace, this will constitute racial harassment.
Importantly, the intent of the person who is expressing their view is irrelevant when assessing whether their behaviour constitutes racial harassment; rather, the focus is on whether it is hurtful or offensive to the affected employee, ultimately having a detrimental effect on their employment.
Where an employee makes a complaint of racial harassment, the employer must inquire into the facts of what has been alleged. If the employer is satisfied that the behaviour occurred, the employer must take whatever steps are practicable to prevent any repetition of such behaviour; if they don’t, this could be valid grounds for an employee to raise a personal grievance against the employer.
Whilst the Tribunal did not consider the particular issue, it is likely that Hugill’s conduct would meet the definition of racial harassment in the employment context, despite her claim that her statements were true, and that “It’s not hatred discussion… I am telling it. Like I have witnessed a million times over”.
Whilst Hugill’s conduct is likely to be viewed by most people as offensive, there are more ‘subtle’ examples of conduct that might not neatly fit within the definition of racial harassment. For example, a racial slur said ‘in jest’ by an employee partaking in the daily quiz with a group of colleagues during morning tea and not aimed at any particular employee. Or where an employee shares a poster on the lunchroom noticeboard (which is there for employees to use) promoting an anti-immigration community group meeting.
In this situation it is up to employers to make clear their expectations relating to such conduct and to have policies in place for dealing with this.
The reality is, whilst an employer must balance an employee’s right to freedom of expression, they also have a responsibility to provide all employees with a safe and healthy workplace. To the extent that another employee’s conduct causes offence and potentially mental distress, it becomes an employment issue.
In this regard the right to freedom of expression is subject to restrictions under both the Bill of Rights Act and other employment legislation.
Whether the expression of personal views by an employee warrants disciplinary action will require a case by case analysis, focusing on the kaupapa of the organisation, and whether what has been expressed did, or could have, caused offence to someone else. Through clear policies, leadership and consistency, employers should be able to create a workplace culture whereby employees can hold their own views but express those (or not) in a respectful manner.
Similarly, employees should consider what social responsibilities they have before expressing views in the workplace, as not only could they find themselves in breach of their employment obligations, they may also find themselves responsible for creating an unsafe and unhappy space for others.
