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TPPA nurse protestor unlikely to lose her job: what are the employment, freedom of speech and human rights issues arising from the incident in which a protestor, who happens to be a nurse, threw a 'sex toy' at a minister of the Crown?

The world's media had eyes on New Zealand for all the wrong reasons on Waitangi Day.

Not because of controversy about John Key's absence from Waitangi due to tensions around the Trans Pacific Partnership Agreement (TPPA), but because (Economic Development Minister) Steven Joyce was caught on camera being hit in the face by a flying sex toy.

The incident attracted worldwide attention and last month was featured by comedian John Oliver on his HBO show.

The protestor who launched the pink projectile was clearly heard yelling: "That's for raping our sovereignty". It has since transpired that the woman in question is well-regarded Christchurch nurse Josie Butler.

Distaste at TPPA

Butler attended Waitangi with a view to expressing her distaste at the implications of the TPPA on the cost of medicine and how this would affect her patients.

She has commented that: "I don't want to live in a country where families have to choose between potentially life-saving medication or feeding their children because of the increased price of medications under the TPPA."

Her employer, Hillmorton Hospital, has been noticeably quiet about what, if any, action it might take in respect of her employment.

An employer is lawfully entitled to take an interest in what an employee does in their own time, if it impacts on the trust and confidence in the employment relationship, or where the actions bring the employer into disrepute.

The question then is, to what extent is Hillmorton entitled to have concerns about Butler's actions? Do they impact on her nursing competence and ability to perform her role? Do they bring her employer into disrepute?

Butler's actions have nothing to do with professional competence, so this is unlikely to be an issue for her employer.

Further, Butler was obviously not representing her employer at the time, and was not purporting to act in her capacity as an employee.

However, unfortunately for her, Butler is a relatively well-known figure, having received public recognition as one of the life-saving nurses on the front line of the Christchurch earthquakes.

It is now public knowledge who she and her employer are, in connection with the incident.

This situation can be contrasted with one of the seminal cases in this area of employment law, which involved former Forsyth Barr investment analyst Guy Hallwright.

Hallwright was dismissed for a road rage incident outside of work time.

Forsyth Barr successfully argued that the dismissal was justified on the basis that Hallwright was a high profile, senior employee performing a media-facing role, and that the flood of news coverage that the case received brought Forsyth Barr into disrepute.

Unlike Hallwright, Butler does not occupy a role which requires her to represent her employer in the media, and it would seem unlikely that Hillmorton could argue that it has suffered the same adverse effects as a result of the subsequent media exposure.

It is certainly true that Hillmorton has been the feature of media commentary around the incident, but no one is seriously suggesting that the hospital was in any way party to the event or condoned it.

Further, it may be difficult for Hillmorton to argue that its image and reputation has been seriously damaged by Butler's actions.

To the contrary, one could take the view that Butler has shown herself to be a fierce advocate for health services.

There is another legal twist relevant to Butler's case, in that it is arguable that she was expressing a political opinion regarding the TPPA and should be free to do so. Expression of political opinion is protected under the Human Rights Act 1993.

We may never know what, if any, action Hillmorton takes against Butler in relation to the incident.

While many New Zealanders may question her judgement in hurling a sex toy at a politician --and it could potentially have raised health and safety issues depending on its trajectory--it is likely to be too remote from her employment to justify dismissal.

* This article has been re-published with the permission of the author. It was originally published as an employment law column, 'Sex toy throwing nurse Josie Butler unlikely to lose her job at Hillmorton Hospital', published in The Dominion Post on February 24, 2016.

* See also news story on p7.

Susan Hornsby-Geluk, LLB (1st Class Hons), is a partner, Dundas Street Employment Lawyers, www.
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Title Annotation:industrial focus; protest against the Trans Pacific Partnership Agreement of Josie Butler
Author:Hornsby-Geluk, Susan
Publication:Kai Tiaki: Nursing New Zealand
Geographic Code:8NEWZ
Date:Mar 1, 2016
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