Companies in New Zealand are walking a difficult line with employees who use the workplace to promote conspiracy theories or extremist political views.
Such cases raise complex questions about freedom of speech and the right to a safe working environment, and a range of employment experts told Stuff there was no easy answer.
One manager at a major national employer with over 1500 staff said they had dealt with extremist issues in their own workplace, and felt they needed more powers to act against problematic employees.
They spoke on condition of anonymity so they could freely describe the “collision” of obligations and rights.
“With the more extreme views, it’s potentially time for a refreshed look about what we should do with these issues in the workplace,” the manager said.
“If these were race-based or faith-based views expressed, people in the workplace would rightly feel very, very uncomfortable.”
The manager said while they felt they had enough powers to investigate employees, it was difficult to act against them without the worry of legal jeopardy.
“We need greater clarity for intervention through to employment action, from warnings through to dismissal, depending on the circumstances,” they said.
The manager felt the law was currently lacking when it came to defining where annoying political views crossed into the dangerous, with allusions of or explicit violence within political beliefs.
For example, an employee who stridently supported Donald Trump could just be annoying, but vocal support in the workplace for the violent January 6 insurrection and storming of the US Capitol could be potentially harmful to the wellbeing and safety of other employees.
“The current employment law poses some challenges to employers: do I have to catch someone if they have done misconduct before I can take serious action?”
The manager said the law was also unclear about what to do with an employee who was radicalising in plain view, or who had a profile outside of work that centred around extreme beliefs.
“I think there’s a spectrum: dismissal is at one end of the spectrum, there are some who go down the rabbit hole, and we should try to pull them out of the rabbit hole.”
Employment law specialist Catherine Stewart said the key point of crossover between freedom of expression and a health and safety breach was making another employee feel “uncomfortable” or “threatened”.
Offence taken by colleagues had to be “reasonable”, she said, otherwise the situation could stray into the realm of some employees trying to censor others.
Stewart said the situation was more clear-cut in cases such as an employee being a neo-Nazi whose beliefs were intrinsically offensive, especially to Jewish and LGBTQIA+ employees.
“These cases could be handled like any other harassment or bullying issue with disciplinary processes applying in significant cases.”
However, if the beliefs were less intrinsically offensive, then an employer could run the risk of a discrimination claim being run against them if they acted against the employee, Stewart said.
In those situations, employers could look to mitigate the issues in several ways, such as getting employees to agree to not talk about the issue in question in the workplace, and being tolerant with each other.
Stewart said the best path forward for employers was to have a code of conduct “which proactively sets out expectations of behaviour in the workplace, and can be referred to as situations arise.”
Richard Wagstaff, president of the Council of Trade Unions, said if an employee was continually harassing other staff with their political beliefs, there had to be some responsibility.
“I could foresee a situation where a worker has been given adequate opportunity to desist from antisocial behaviour and ultimately if they weren’t prepared to take it, [sacking them] may be an option,” he said.
“Employees have a right to a safe and healthy workplace and I think certainly people harassing people around them continually when they’ve been told to stop is not in keeping with a safe and healthy workplace.”
Wagstaff said he felt current law dealt with extremism and conspiracy theories in the workplace under the existing harassment and health and safety provisions.
“I think [employers] will just deal with it as another form of antisocial behaviour,” he said.
Workplace Relations Minister Michael Wood said employers and employees had responsibilities to each other, with fair processes in place to investigate concerns as necessary.
“This could include having clear reporting processes, and creating a work culture which values employees speaking up and reporting concerns,” he said.
“Employees are entitled to a healthy and safe workplace. Employers must recognise when differing views veer into possible bullying or harassing behaviours, and address this quickly and appropriately, with clear processes in place.”
Wood said the Government did not have any plans for reform in the area.
