Ex-employee penalised $1000 for Facebook post

Cambridge Analytica and Mark Zuckerberg aren’t the only ones who have recently been in the hot-seat for issues arising around Facebook.

In Adams Plumbing, Drainage and Electrical Limited v Hughes [2018] NZERA Christchurch 27 22/02/2018, Mr Hughes, an ex-employee of Adams Plumbing, Drainage and Electrical Limited, was made to pay a penalty of $1000.00 by the Employment Relations Authority for breaching a confidentiality clause in the Record of Settlement that the parties entered into in 2016.

More than a year after the settlement, Mr Hughes published the first page of their settlement agreement on his Facebook page, outlining the amount of money Adams agreed to pay him. He posted a comment underneath expressing his frustration towards Adams’ requests for documentation during the process. The post was removed shortly after when the director of Adams, alerted by staff and customers, demanded it to be taken down.

In consideration of the purpose of section 149(9) of the Employment Relations Act 2000, the Authority determined that a penalty should be imposed on Mr Hughes to punish his breach of the legally binding agreement, to deter and prevent future breaches, and to compensate Adams.

The Authority adopted a four-step analysis, taking into account the nature and extent of the breach, an assessment of its severity, the means and ability of Mr Hughes to pay, and the proportionality of the penalty. Mr Hughes was ordered not to breach the confidentiality provision again, and to pay a penalty of $1000.00.

There have been other cases of ex-employees being penalised for breaching their settlement agreements on Facebook.  In Kea Petroleum Holdings Ltd v McLeod [2014] NZERA Wellington 113, the Authority imposed a $2000.00 penalty on an ex-employee who posted confidential information and derogatory comments about an employer on Facebook.  A penalty of $3000.00 was enforced in Bidvest NZ Ltd v Vivian NZERA Wellington 101, where an ex-employee sent confidential information concerning the terms of settlement to a current employee through Facebook messenger.

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