Standing up against intolerance
New Zealand is a liberal democracy with a Bill of Rights Act that affirms democratic freedoms. These apply in all areas of life, including the workplace.
Citizens are guaranteed the right to freedom of thought, conscience and religious belief. This includes the right to adopt and hold opinions without interference.
More significantly for our purposes, the act provides that everyone has the right to freedom of expression including freedom to seek, receive and impart information and opinions of any kind in any form.
The Bill of Rights Act does state that the rights in the act are subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and democratic society.
The tragic killings in Christchurch drew attention to an insidious online culture of intolerance, resulting in censorship of various websites, forums and materials.
Most notably, chief censor David Shanks classified the manifesto of the alleged killer objectionable, making it illegal to possess or share.
It is common in times of crisis for governments to actively censor materials that feed into the very crisis they are tackling.
In an employment context, the 1951 Waterfront Dispute is a good example. It became a criminal offence to possess what the Government viewed as antigovernment literature.
No doubt the watersiders felt that the Government had the sympathetic ear of the mass media and the only way to get their side of the story across was through unofficial publications and leaflets. However, unfortunately for the watersiders, these were illegal.
After the atrocities in Christchurch there has been a government clampdown on hate speech, particularly online. Communities and individuals have responded to the attacks with calls for increased tolerance and acceptance.
A group of business leaders took a stand against racism by publishing an open letter calling for other New Zealand businesses to join a commitment for a better, safer and more inclusive New Zealand. The signatories committed to creating a culture where words, behaviours and systems that directly or indirectly discriminate against people, are not tolerated.
Chief Human Rights Commissioner Paul Hunt praised their efforts and said employers had a crucial role in making sure that workplaces were safe and inclusive environments free from discrimination in all forms.
Certainly, our Human Rights Act prohibits discrimination on the grounds of race, ethnicity, sexual orientation and religious belief inside and outside the workplace. Further, an employer is obliged to investigate and take practicable steps to respond to sexual and racial harassment in the workplace.
If employers are seeking to moderate the language used by their employees outside of work, one avenue for them is to include a social media clause.
When rugby player Israel Folau made inflammatory social media posts last year, Rugby Australia sought to insert such a clause into the player’s employment contract, but they could not reach agreement.
Rugby Australia must instead rely on the code of conduct signed by the player, which may be more difficult to apply than a specific social media clause.
Alternatively, employers can rely on the duty of fidelity owed by employees which includes the duty not to bring the employer into disrepute, however, the courts have been careful in making decisions that impinge on freedom of expression.
For instance, an Employment Court decision in the 1990s, involving the Tararua District Council, concerned an employee who made statements opposing council policy at a public meeting. The council dismissed the employee on the grounds of a breach of the duty of fidelity.
The court held that the dismissal was not legitimate as the employee did not violate any policies or active instructions, she did not intend to frustrate council policy and the statements were unlikely to cause injury to the employer as listeners would judge the validity of the statements themselves.
This is the high watermark of cases upholding New Zealand’s liberal democratic values giving freedom to employees to express views publicly that might not be consistent with their employer’s views.
There is little doubt that the killings in Christchurch have changed New Zealand. This event has resulted in rapid constraints on what can be said, posted and shared, as a means to crackdown on intolerance and hate.
However, alongside these institutional measures, New Zealand as a society has demonstrated a stronger sensitivity to intolerance. This sensitivity has heightened calls for accountability in situations like the Folau controversy and has led to key groups in society to actively work towards a more inclusive and respectful New Zealand.