Two recent reports from the United States deal with the dismissal of modern-day activists who were publicly critical of the policies and practices of Netflix and Apple. New Zealand also has its modern-day activists.
Netflix fired a trans-activist for allegedly leaking internal documents because of their opposition to a Netflix show. The new Dave Chappelle show has the comedian making a series of anti-trans jokes about gender-neutral pronouns and about the genitalia of transgender people.
The worker has been a lead figure in encouraging trans employees and allies to walk out of work in protest. Apparently leaked documents show that the show in question brought in less money than it cost to make.
Netflix said: “We understand this employee may have been motivated by disappointment and hurt with Netflix, but maintaining a culture of trust and transparency is core to our company.”
There has been a backlash. There have been unprecedented leaks. The company suspended a trans-worker who printed criticism of the special, but later reversed the suspension (Netflix denies the suspension related to the worker’s tweets).
At least a thousand employees have planned a virtual walkout in response. The public has also responded. People are cancelling their subscriptions. In the past few days both Netflix and the comedian have backed off and given expressions of regret.
Around the same time Apple fired employee Janneke Parrish, who apparently was the leader of the #AppleToo movement. This is an employee movement organised in response to alleged patterns of discrimination, racism and sexism at Apple.
Parrish had deleted personal files from her work device during an internal investigation. The company had told her she was under investigation for leaking information to the media. As part of the investigation, Apple confiscated her devices.
Apple encouraged workers to use work devices as personal devices, Parrish said. Before handing over her devices, she deleted files that contained personal information.
She said the company had a culture of secrecy and loyalty to the company: “Speaking out … is seen as fundamentally disloyal.”
She had worked for Apple for five years and said she believed she was fired for speaking out publicly about issues within the company as leader of the #AppleToo movement.
She said she had been very vocal and very public and was unafraid to put her name and face to #AppleToo. “This feels very like retaliation for having the courage to speak out,” she said.
So what rights does each party have.
In New Zealand, both parties to an employment relationship are expected to conduct themselves in a way that enhances trust and confidence. The worker has a duty of fidelity to their employer. Both parties have good-faith obligations. This means they must be responsive and communicative and not engage in conduct which is misleading or deceptive.
It is hard to escape the conclusion that both of these activists would have risked losing their jobs under New Zealand employment law.
We do, however, have a Protected Disclosures Act that provides employees with some protection for releasing defined information in certain ways. But the coverage of this legislation is narrow.
Some years ago, a former employee at Richmond Services Limited took the company to the Employment Court.
The worker was a community support worker who provided health services under contract to various district health boards and the Ministry of Health.
The worker was concerned that a client was being permitted by Richmond staff and the relevant district health board to engage in abusive prostitution which had the potential to cause her harm.
The worker resigned from her employment with Richmond, taking copies of the client’s clinical records with her. Her intention was to use the data to bring complaints against certain staff members. She believed she had a need to retain and use the documents to advance her concerns.
Litigation followed, with Richmond seeking the return of the records. The court ordered the return to Richmond of its documents. The court considered the Protected Disclosures Act and said that some disclosures were protected but others were not. For example, disclosures to the worker’s family and the news media were not protected.
More generally it is important to understand that the Protected Disclosures Act applies when a worker wants to disclose serious wrongdoing within an employer.
A serious wrongdoing is rather narrowly defined in the legislation. For example, it includes an act or omission or course of conduct that constitutes a serious risk to public health or public safety or the environment. It includes an act or omission or course of conduct that constitutes an offence.
What is important is that anyone wanting to rely on the Protected Disclosures Act must first make sure the conduct they are concerned about is covered by the definition of a serious wrongdoing.
The worker has to believe on reasonable grounds that the disclosure is true or likely to be true. If an organisation has a protected disclosure policy, you must comply with it.
If the worker is concerned that the disclosure involves a director of the board, then there are appropriate authorities the disclosure can be made to. These include the police commissioner, the auditor general, the director of the Serious Fraud Office and others.
In conclusion, activists risk their job if they go public and attack their employer. If they believe that conduct which is captured by the Protected Disclosures Act has taken place, then there are processes to be followed to make a complaint, which do not include taking it to the media.
Following the example of the Netflix or Apple employees, making a public attack on the employer in New Zealand is likely to end in tears for the worker.
Employees must tread cautiously before publicly attacking their employer, or they may end up without a job.