The Post

Standing up against intoleranc­e

- Peter Cullen Peter Cullen is a partner at Cullen – the Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz.

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.

 ??  ?? Chief sensor David Shanks has classified the manifesto of the alleged Christchur­ch gunman as objectiona­ble.
Chief sensor David Shanks has classified the manifesto of the alleged Christchur­ch gunman as objectiona­ble.
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