After a drawn-out hearing, no quick judgment is to be expected in the case taken by academic and science communicator Siouxsie Wiles against her employer, the University of Auckland.
By Sasha Borissenko
“I know it’s been a marathon for everybody concerned from all sides, and I really acknowledge that,” Employment Court judge Joanna Holden warmly said in November.
Her calm, almost jovial words to a tired courtroom marked the end of a three-week hearing between microbiologist and 2021 New Zealander of the Year, associate professor Siouxsie Wiles, and her employer, the University of Auckland.
With 20-odd witnesses — many of them distinguished experts in their respective fields
— over 16 days, the hearing wasn’t short on nuance or detail. But perhaps University of Auckland defence counsel Philip Skelton KC put it best: “Given the amount of money at stake in this case and the time, effort and money that’s gone into a three-week trial, I find it extraordinary that this matter has gotten to this [point].”
At the heart of the case was Wiles herself: principled and resilient, she didn’t embody the traditional hallmarks of what an academic in a hierarchical institution should do, or look like. The more public attention she received for her communications during the pandemic, the more public abuse she received, questioning her motivations, work ethic and character. This much was beyond dispute.
From there, two fundamentally opposed narratives emerged. On the one hand, Wiles had exposed a system that was happy to profit from her and others’ work, when it suited. Her questioning of whether the university was fulfilling its side of the bargain to ensure academic freedom left her feeling hung out to dry to deal with a “tsunami” of vitriolic abuse, and she was punished in the process.
On the other hand, and this was the crux of the university’s response, here was an academic who wouldn’t stick to the employer-prescribed rules of the game. The university would claim it did everything within its power to fulfil its health and safety and contractual obligations. What employer should be responsible for keyboard warriors threatening society’s democratic institutions? And while academics were protected by academic freedom to speak freely, it was for the court to decide where those freedoms started and where they stopped.
Far from an ivory tower debate, the case came with broader implications. If Wiles were to set a precedent, what could this mean for employers that have traditionally turned a blind eye to trauma experienced as part of the job? Might the case lead to a floodgate of claims by doctors, nurses, teachers, or even journalists?
Siouxsie Wiles. Photo: Jamie Wright
Dawn Freshwater. Photo: University of Auckland
Setting the scene
In March 2020, the “team of five million”had started to come to terms with a new, simpler, and temporarily restricted form of living, thanks to the first Government-mandated COVID-19 lockdown.
Tensions among people opposed to the measures started to bubble under the surface, and a wave of conspiracy theories and misinformation found willing audiences online.
The media, here and abroad, sought academic experts to set the record straight.
Wiles and her compeers first raised concerns about their safety to their employer in April 2020, a month shy of COVID-19 reaching the antipodes. Alleging the university had failed to address those concerns, personal grievances were filed in July 2021. Five months later, the Employment Relations Authority determined the claims should be heard in the Employment Court.
Wiles’ fellow claimant, physics professor Shaun Hendy, resolved his dispute when he left the university in October last year. But Wiles — still employed at the university today — kicked on. And so it was.
Sitting in the dock in the Auckland Employment Court, Wiles addressed a room full of some of the best legal and academic minds in the country, as well as her employers.
“Nothing could have prepared me for the public intensity and media inquiry that came with the COVID pandemic,” Wiles said, describing how she gave up to 30 interviews a day on top of her teaching and research requirements, beginning in January 2020.
Although Wiles had a high profile as a communicator of science and research prior to COVID-19, she told the court she had never received anything like the harassment she received for her work on the pandemic.
Wiles told the court harassment included being linked to the Chinese Communist Party, causing miscarriages among pregnant women and being likened to Lucifer and Satan.
There were calls for her to be hanged, imprisoned, raped and executed by firing squad, and subject to a citizen’s arrest for crimes against humanity, including murder and genocide, the court heard.
The list of abuse was as vast as it was deranged.
Unfortunately, abuse in general against university staff was not uncommon, said Vice- Chancellor Dawn Freshwater as she took the stand a week later, describing an example when she herself had been followed home.
“Not a day goes by where I do not get some form of abuse in my inbox.”
Why was Wiles targeted to an extreme? Enter The Disinformation Project research fellow, Sanjana Hattotuwa, who said Wiles’ pro-vaccination, pro-lockdown and pro-mandates messages prompted volumes of misinformation and disinformation.
Wiles was female, she had unique features as a public intellectual and science communicator, and she was visually identifiable in her appearance, making her one of the most targeted and harassed people online in New Zealand he said.
“She faces a huge amount of vituperative, vicious and violent harassment on virtually every online platform and on an almost daily basis.”
On top of having her home address broadcast online with associated threats to physically confront her at her home, Wiles was targeted by Billy Te Kahika, who developed a following for his views against the vaccine mandates. Te Kahika founded the short-lived AdvanceNZ party with former National MP Jami-Lee Ross, which garnered 28,429 votes in the 2020 election before quietly folding in 2021.
“Make sure you pay … because you will pay,” Te Kahika heckled Wiles as she dined in a Wellington restaurant, in a video revealed to the court.
The safety measures
Wiles and her colleagues first raised concerns in April 2020after a man sent dozens of harassing emails using a University of Auckland email address. The man, who wasn’t listed in the university directory, was eventually blocked, but university security expressly said the man could simply use other accounts, she said.
What followed was 60 emails and various meetings with senior leadership, faculty management and human resources, that requested the university take Wiles’ and her colleagues’ safety concerns seriously.
Wiles’ concerns “fell on deaf ears”, leaving her to feel “highly unsupported, reactive, haphazard, inadequate and retaliatory”.
The university’s approach to health and safety added “enormously to my stress, and left me feeling frustrated, demoralised and unsafe”.
From Wiles’ perspective, the “university failed at every turn” to show her and her colleagues any kind of meaningful support”. Instead, feeling abandoned and exposed, the onus fell on those bearing the brunt of the harassment to seek help from the police, Netsafe and Employee Assistance Program counselling services, Wiles told the court.
Speaking for the university, defence counsel Philip Skelton KC warned against hindsight bias. In his closing address, he said the court would no doubt have considerable sympathy for Wiles, who had been the innocent victim of a relentless campaign of vile hate and vitriol.
While no employee should be subjected to such abuse for doing their job, the court had to be mindful that it was looking at the issues with the benefit of hindsight.
“It’s always easy to say with the benefit of hindsight that an employer could have done more or acted sooner than it did.
“I think it’s common ground amongst us that it is almost impossible, or at least very difficult, for the university to control social media platforms or to prevent people posting abusive stuff on those platforms.”
Skelton outlined measures the university had taken, including liaising with police, briefing campus security about potential threats, establishing a monitored inbox for harassment, organising security cameras to be set up in Wiles’ home, offering Wiles paid leave and seeking external expert advice.
Defence witness and human resources associate director Stefanie Boyer was appointed as a key liaison for Wiles in February 2021. She was tasked with ‘checking in’ on Wiles on a human level, she told the court.
With empathy in mind, she said, she really tried to do that through phone calls, texts and emails, as well as establishing a social media monitoring service at Wiles’ request.
“The relationship between us at the time seemed quite friendly — we had an exchange of suggestions, support and ideas.”