As the role of social media in everyday life becomes more prevalent, the grey area surrounding how much personal and professional information is appropriate to be sharing online is expanding.
What is clear is that an employee owes a duty of fidelity to their employer, and cannot make comments that will bring their employer in to disrepute. This law applies to conversations in person and to conversations, representations, or publications via social media, which has a “limitless audience”. However, the power to disparage is obviously greater on the social media platform.
The New Zealand Employment Court, citing an Australian decision, have made the observation that negative comments distributed on social media are naturally more permanent and public in nature:
“The fact that the conversations were conducted in electronic form and on Facebook gave the comments a different characteristic and a potentially wider circulation than a public discussion. Even if the comments were only accessible by the 170 Facebook “friends” of the Applicant, this was a wide audience and one which included employees of the Company. Further, the nature of Facebook (and other such electronic communication on the internet) means that the comments might easily be forwarded on to others, widening the audience for their publication. Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner.”
Given the increased severity of the power to disparage over social media, should an employee face harsher disciplinary action than they would have done had they made disparaging remarks in a less public manner?
The nature of the comments, the nature of the damage done, and the disciplinary history of the employee are important factors in answering this question. And while the answer will always be dependent on the relevant circumstances, previous cases will provide guidance on the issue.
Dickinson v Chief Executive, Ministry of Social Development
An employee working for MSD was dismissed after MSD found comments on Facebook, made by the employee, about her political values as a left wing conservative and her favourite quotes such as, “hey boss, can I go home sick????” The employee also stated she was a government employee and called herself a, “very expensive paperweight who is highly competent in the art of time wastage, blame shifting and stationary [sic] theft.”
The Employment Relations Authority (Authority) held that the comments were disparaging of the public service, but, when looked at in isolation, were not sufficient to dismiss the employee.
However, the employee’s previous disciplinary record (including charges of arson outside of work, and unauthorised access to records of clients) combined with the derogatory Facebook comments, provided sufficient grounds for a justified dismissal, as the employer’s trust and confidence in the employee had been destroyed as a result of the comments.
Blylevens v Kidicorp Ltd
An employee for Kidicorp, a childcare organisation, was dismissed following their involvement in posts made by her legal advocate on Facebook which brought Kidicorp in to disrepute.
The advocate’s first post was titled “Kidicorp Strikes Again” and went on to state that Kidicorp was, “removing unwanted staff”, “lots of them” through “allegations of bullying” including “trumped up charges, tampered with or totally fake documents, refusal to allow a target to have a support person.” The post also criticised Kidicorp’s HR team calling them the, “vindictive Kidicorp HR Krew”, and implied that Kidicorp was not providing a safe environment for children.
The employee liked and commented on this post stating, “Interesting article pep! As a parent looking at childcare it’s good to be informed x.”
The advocate also made a second post on Facebook accusing Kidicorp of “corporate bullying”, stating that Kidicorp was creating a “toxic” environment and that “there must be an adverse effect” on the childcare Kidicorp provided. The employee liked this post and had information publicly available on her Facebook account showing that she was an employee of Kidicorp (this meant that if a person hovered their cursor over her name, they could see her occupation).
The Authority explained that through liking the advocate’s posts, the employee was ensuring that the posts were shared with the employee’s Facebook friends, which included other Kidicorp employees and parents who placed their children with Kidicorp. Ultimately it showed a Kidicorp employee endorsing disparaging views of their employer.
The Authority compared the employee actions to a hypothetical employee, “standing outside the Centre … handing out copies of Ms Rolston’s derogatory articles about Kidicorp while telling people “here is an interesting article – it is good to be informed.””
The actions of the employee were found to be in breach of Kidicorp’s social media policy, the employee’s employment agreement and the employee’s duty of good faith and fidelity to the employer. As a result, the employee’s dismissal was found to be justified by the Authority.
Workplace Law team
If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:
Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green, Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
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ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Fiona McMillan