The limits to speaking your mind
In New Zealand, freedom of expression 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, including the law of defamation.
Broadly speaking, defamation is where someone publishes a false statement which damages another person’s reputation. Defences included truth and honest opinion.
In the employment context, defamation claims can arise in a number of contexts.
The first is where an employee makes false statements or complaints about a colleague. An employer may be justified in taking disciplinary action against the employee concerned. The person who has been wrongly maligned might also pursue a defamation claim.
In Sheerin v Jamieson Castles Barristers and Solicitors, a legal secretary, Bronwyn Sheerin, was dismissed 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. When sacked, Sheerin raised a claim of unjustified dismissal.
The authority upheld the employer’s decision, adding that even if there had been an affair, Sheerin’s behaviour would have been ‘‘inexcusable and totally unacceptable’’.
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 police employee, Melissa Opai, sued 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’’.
Police stated that the comments about her were made by the manager as part of their job to assess the performance of staff.
She originally sought $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 the 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. Such comments are unlikely to be defamatory if they represent an honestly held view.
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.
The act provides that the parties to an employment relationship must not do anything 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 considered a statement of fact or opinion reasonably held.
At the heart of the employment relationship is the requirement to act in good faith, and the right to express opinions has its limits.