Wiles v University of Auckland: landmark case or ivory-tower squabble?

University mandarins and scribes should note the judge’s comments.

An Employment Court judgement exposes the poor management that’s ruining our universities.

Siouxsie Wiles is a familiar name and face for many New Zealanders. She’s an academic expert in microbiology and infectious diseases, well known for her skill as a science communicator. She played a prominent role in keeping the public informed during the Covid-19 pandemic.

In the words of the Employment Court, however, “Associate Professor Wiles was the innocent victim of a relentless campaign of vile hate and vitriol from a sector of society that was strongly opposed to lockdowns and vaccination mandates, something no employee should be subjected to for doing their job.” Her employer, the University of Auckland, accepted that. But Siouxsie (as I’ll refer to her for brevity) took the University to court for inadequate actions to protect her health and safety.

The court found that “the University breached its (express and implied) contractual obligations to protect Associate Professor Wiles’s health and safety”. And the University “breached its statutory duties of good faith and to be a good employer by failing to engage constructively regarding her safety”.

In some of its actions, the University made matters worse by questioning Siouxsie’s external activities and communications, rather than seeking to prevent or minimise harm to her. They tried to pass the buck back to her by arguing that her external relations activities weren’t entirely a part of her work. The university’s health and safety response was insufficient and too slow. They didn’t have a well-developed strategy for dealing with harassment, threats and doxing. They didn’t do a risk assessment, despite evident threats to her safety.

The court has awarded Siouxsie $20,000 in general damages.

The judge commented that academic freedom is only a side issue here. “The University was not attempting to suppress new ideas, or controversial or unpopular opinions”. The case was about employment relations and health and safety.

The public role that academics play is a part of their job, mandated in law. But it’s not compulsory. Not doing it should not be a barrier to promotion. Many academics don’t want media exposure. And reading about Siouxsie’s case may make some academics – especially women – even more reluctant to stick their necks out in public. There are cowardly people out there ready to abuse you, often under cover of anonymous social-media accounts.

Nonetheless, the universities benefit from the implicit commercial value of the free publicity and brand-exposure that accrue from getting their staff into the media. It makes them look “relevant” and performs a public service. Hence they generally encourage it as a part of their marketing – a point made by journalist John Campbell as witness in the trial.

In their turn, the media organisations get free content from experts who bear the imprimatur of the university’s name as an epistemic authority. Audiences generally suppose that these talking heads “know what they’re talking about”.

Of course anyone can disagree with them too. But some people’s disagreements with public-health experts during the pandemic went well beyond what’s reasonable. It was then incumbent on the universities as employers to protect academic staff from potential harm arising from this work.

The universities shouldn’t get away with enjoying the publicity and then hanging an academic out to dry if she gets attacked for her commitment to public health.

Sadly it doesn’t surprise me that the University of Auckland failed to take adequate actions nor that it seems to have been unprepared for dealing with abuse against its own staff. Even though the Vice-Chancellor herself had been a target of toxic emails and harassment, including being followed home, she and her team were not proactive in protecting their staff. Indeed, it looks as if they resorted to victim-blaming.

Does Wiles v University of Auckland change anything?

The judgement clarifies some points of law – so it will be of interest to employment lawyers. University managers might do something to better prepare their organisations for attacks on their staff. But Wiles is a product of unusual circumstances, and it doesn’t challenge general understandings about scientific knowledge, academic freedom and free speech.

Furthermore, the judge wasn’t buying Siouxsie’s claim that te Tiriti obligations were breached. The application of tikanga in the courts is evolving, and Siouxsie had worked with Māori communities to support their Covid-19 responses.

The judge wisely remarked, however, that the University’s te Tiriti obligations do not “devolve to obligations on individual staff members”, as far as their own academic work is concerned.

University management should take note of that, as there have been unrealistic efforts to force poorly defined “Treaty obligations” into teaching and research. For example, one university is now telling its academic staff that all curricula should, as a high priority, be “designed, developed and delivered in authentic partnerships with Māori [and] uphold provisions of Te Tiriti o Waitangi”. It’s not clear how so many authentic partnerships can be achieved across all disciplines, from chemistry to ancient history. The 1840 text of te Tiriti gives no guidance on advanced learning in the twenty-first century. A parochial requirement to “honour the Treaty as a partnership between iwi and the Crown” has little relevance to, or recognition in, the competitive international world of academic disciplines.

These top-down Tiriti-led strategies have lost any emancipatory or decolonising effect and instead they’re now having an oppressive and chilling effect on academic freedom, not least within law schools, as the learned judge may be aware.

There’s also some concern these days that universities use health and safety as a pretext for the suppression of free speech. Wiles doesn’t directly address that question, as it addresses inadequate application of H&S standards, not their over-use. The judge made a relevant comment, however:

“Universities cannot use ‘safety’ as a pretext to shut down expressions of a view that is critical of the university or which is unpopular, but there will be examples where an immediate and serious health and safety risk that cannot be managed will need to be accommodated. This may mean, for example, that a particular event, such as a speech or conference, will not be able to proceed in the manner planned.”

The judge acknowledged that academic freedom includes the freedom to criticise one’s own employer. University management should take note of that too.

As an employment-relations case and a three-week trial, Wiles was high-profile and presumably very expensive. The plaintiff won, though not on all counts. It was neither a win nor a loss for academic freedom and free speech. It did expose the true cause of the rot: management incompetence.