The University of Auckland has been ordered to pay the scientist $20,000 in damages for breaching her employment contract. Her original co-complainant Shaun Hendy says the outcome should prompt some serious soul-searching.
At the heart of Wiles v the University of Auckland – a case heard by the Employment Court in Auckland in November last year – was the extent to which a university is obligated to manage the risks arising from harassment of its academic staff who engage in public commentary.
Associate Professor Siouxsie Wiles, one of New Zealand’s most celebrated and indefatigable Covid-19 commentators, was subject to sustained and distressing harassment, both online and in person, during the pandemic. When she turned to the university for help, she was told that her commentary did not fall within her duties as an academic. Rather than supporting her, the university told her she might have to stop.
Unsatisfied, Wiles filed a personal grievance in August 2021, and after a two-year marathon, was finally able to bring the university before the Employment Court late last year. The court’s judgment, released earlier this week, upholds Wiles’s grievance and makes other important findings in her favour.
Most crucially, the court found that Wiles’s commentary was, in fact, part of her job. This means that her employer had obligations to protect her under New Zealand’s health and safety legislation. Indeed, the court found that the university had failed in those obligations to Wiles and, in the process, had not fulfilled a host of other responsibilities as her employer.
The judgment should be a wake-up call for New Zealand’s universities. Wiles’s courageous stance, in taking on New Zealand’s largest university, has left academic freedom in a much stronger position, and for this she will be much admired. The fact that she had to take her university all the way to the Employment Court to force it to take her concerns seriously, on the other hand, should trigger some serious soul-searching in the tertiary sector.
Wiles was successful on several other matters. The judgment sheds light on the university’s victim-blaming, where it seemed to suggest she was bringing the abuse on herself. This was reflected in the stance of some university senior managers, one of whom the judge described as having views that “were affected by Associate Professor Wiles’s popularity.”
For me, this is the saddest part of what was a thoroughly shameful saga: that the university was effectively blaming Wiles for her predicament. At the same time as it was was using Wiles’s profile to promote itself publicly, senior university managers were undermining her behind the scenes. The idea that most of the abuse Wiles was receiving arose from her “activities on social media” rather than her work was a “view that seemed to permeate the university’s approach”, the judge noted, compounding what she charitably called a “problematic response”.
An all-staff email sent by the vice chancellor on Monday after the judgment was made public attempted to frame it as a win for the university. The email left staff none the wiser about the university’s breaches of health and safety and employment law, nor that the university had spent more than $1.2 million in legal fees defending these breaches. I can only conclude that the university remains very much in denial. It can add as many new processes and procedures as it likes, but if it can’t fix the cultural problems that dogged its management’s response, its efforts are just window-dressing.
The vice chancellor’s spin should not detract from the importance of this ruling for the wider tertiary sector. In New Zealand, universities have obligations to preserve and enhance academic freedom, which includes “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas, and to state controversial or unpopular opinions”. The Education Act also says universities have a responsibility to disseminate knowledge and to promote community learning and must accept a role as “critic and conscience” of society.
One of the ways universities meet these obligations is to allow their academics to use their expertise to engage in public commentary. By finding that such commentary falls within Wiles’s scope of employment, something that the University of Auckland was at times reluctant to accept, the judgment substantially strengthens the position of academics who are prepared to take on the role of “critic and conscience of society”.
Dr Siouxsie Wiles helped us beat a virus. She has just stared down a billion-dollar organisation that had lost its way. I have no idea what challenge she will take on next. What I do know is that we must now make the most of the freedom she has fought for. New Zealand’s academy owes her that.
Disclaimer: Shaun Hendy was a co-complainant with Wiles to the Employment Relations Authority, although he settled the matter with the University of Auckland when he left in 2022. Wiles remains a close personal friend.
