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Can you fire an employee for attending a protest?

29 March 2022 | Andrew "Andy" Ogilvie
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In recent weeks there has been a frequent headline in New Zealand National news - the anti-mandate protests, which took place around the country for much of February. 

As with any highly publicised protest, tensions arise - not only between those protesting but among anyone who may be affected by it. Given the hardship New Zealand’s team of 5 million has endured these past two years, the noise of the anti-mandate protest has been especially far-reaching.

Any protest brings feelings of isolation and unrest, but it can also bring tension into the workplace. Therefore, it is important to clarify the position of employees and employers in terms of statements made in the workplace, where to draw the line before considering taking disciplinary action against an employee, and whether disciplinary action is an option at all.

The question employers and employees may now ponder is at what point do the actions of an employee in their own time, tip over into becoming an employment issue, and “can you be fired for attending the protest?” 

Freedom to protest is a fundamental human right under the New Zealand Bill of Rights Act.

Therefore, even when the issue crosses into the subject area of employment, it is unlikely that an employer will have grounds to fire an employee, provided their actions in the protest were lawful and the employee has participated in their own time. This will be the key issue to determine whether an employer has the grounds to terminate the employment of their employee for attending the Wellington protest.

In the media, there is often one image presented to the public. In the case of the Wellington protest, we have seen a lot of extreme behaviour published by media outlets. However, this is not representative of the entire protest, and we must remember there is a variety of people and they all have different limits. For some people, their maximum participation would have been to pick up a sign and peacefully walk down the streets, and for others, their limit is unlawful behaviour such as assault towards police officers. 

Care needs to be taken by employers and employees when faced with a situation giving rise to questions of whether your employee partook in the protest lawfully or unlawfully. They need to ensure that when faced with an employee who has attended a protest, as an employer, you are making a decision based on the actions of the individual, rather than making sweeping judgements based on extreme actions across the protest as a whole. 

An example of conduct that required an employer to decide about the actions of their employee and their impact on the workplace arose in New Plymouth when a nurse was reported to the nursing Council for making discriminatory comments online. The decision of the New Zealand Health Practitioners Disciplinary Tribunal concluded that these statements did not align with Nursing conduct, and she was subsequently suspended. 

The decision was backed up by The New Zealand Bill of Rights Act which 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, but recognised its limits under Section 131 of the Human Rights Act 1993.

If we relate this to the anti-mandate protesters, we can establish a line where the actions of protesters become a cause for concern in the workplace. As with the New Plymouth nurse, if an employee of yours is making discriminatory statements in the workplace, it changes from being the personal business of the employee to a workplace safety issue. A discriminatory statement offends or denigrates another person or group of people. If your staff members or you are experiencing discriminatory conduct from another employee, this can warrant grounds for dismissal of said employee. 

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Article by:

Andrew "Andy" Ogilvie

Associate

Andy's varied background includes banking and hotel management experience, but law is his real passion. He began as clerk in the Courts in Wellington and worked his way up to Registrar of the Court of Appeal, before running his own business and studying law.

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