Mai Chen: Boss can't stop staff playing politics

Jan Walters was awarded $37,000 after being dismissed. Photo / NZME.

Whangarei council case a timely reminder to employers that staff are safeguarded by powerful legislation

Now that the general election is over, employers will be breathing a sigh of relief that they have another three-year respite from issues raised by employees wanting to stand for office, or needing time off work to campaign for their preferred political candidates.

This is an even bigger concern for public sector employers, where it is imperative that state servants "keep their jobs out of their politics and their politics out of their jobs," as the State Sector Commissioner advised. However, the recent Employment Court case against the Whangarei District Council is a good reminder that employees have the right to hold political views, and this is protected by legislation, including the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

Jan Walters was the personal assistant to the mayor and chief executive at the Whangarei District Council. In the most recent local body elections in October 2013, she nominated the previous mayor as a potential mayoral candidate, as was her right under the Local Electoral Act 2001. She was not otherwise involved in any campaigning.

The incumbent chief executive took disciplinary action against Ms Walters for breach of the council's policy requiring employees to be politically neutral, saying that her support for another mayoral candidate meant she could no longer work as his and the incumbent mayor's assistant. At the same time, the chief executive authorised his executive assistant to provide campaign assistance to a third mayoral candidate. Ms Walters was dismissed. The executive assistant was not.

The court found that Ms Walters' dismissal was unjustified. It took into account her right to participate in the democratic process, and that other staff had been allowed a higher level of political involvement more consistent with these rights, but Ms Walters was the only one dismissed. The court found this was unreasonable. She was awarded $37,000.

In an earlier case, in 2005, concerning a presenter for Maori Television, with some public profile, the Employment Court also protected the employee's right to hold a political view. Ngarimu Daniels was a nightly presenter of Maori Television news, and widely recognised as a skilled te reo speaker. She took part in public protests, against the Foreshore and Seabed Bill.

While there was no question that Ms Daniels' participation was both lawful and peaceful, the protest was widely reported in the media due to another participant throwing an axe at then Prime Minister Helen Clark's electoral office.

Ms Daniels was instructed by her employer not to take part in any further protests, on the grounds that she was the "face" of Maori Television, and on pain of future dismissal. The court found that this was unreasonable, and that Ms Daniels had been discriminated against in her employment by virtue of her political views in breach of the Human Rights Act. The court also took into account that other staff who had also been involved in protests had not been treated similarly. She was awarded $16,000, despite not having been dismissed and continuing in her job.

So, how far can a fair and reasonable employer go when refusing requests by employees who want to participate in political action? The cases outlined above show that courts will protect an employee's right to hold a political view, and to participate, at least to some lawful extent, in political action. Attempts by employers to take action against employees for holding political views, even where the employees are in responsible or high-profile positions, are likely to breach the good faith provisions under the Employment Relations Act 2000, as well as breaching more fundamental non-discrimination provisions in the Human Rights Act 1993 and the Bill of Rights Act 1990.

Meeting only the public law tests of natural justice and reasonable action is not enough. This includes being active, responsive, and communicative, in creating and maintaining a productive employment relationship.

Employers considering restrictions on behaviour or codes of conduct which might impact on an employee's right to hold a political viewpoint will need to consider how this might work in practice, including what level of political participation is appropriate (it will need to be more than "none", so some active communication with staff may be needed to work out appropriate cut-off points), and how to make sure that consistent rules and expectations are applied to all employees.

General and local government elections are only once every three years but issues on which employees might want to express political views can arise at any time - so employers need to be ready.

• Chen Palmer appeared in Janet Walters-Gleeson v Whangarei District Council [2014] NZERA Auckland 344.