Employers may seek to monitor social media in order to protect their organisation’s reputation. However, when confronted with employees who post damaging comments on platforms such as Facebook, options may be limited.
While New Zealand courts have indicated that dismissals for misconduct on Facebook are possible, the circumstances in which this could occur have not been properly defined. An employee must not behave in a way so as to seriously damage or destroy their employer’s trust or confidence, or bring them into disrepute. “However, so far there has been no test case establishing at what point Facebook or any social network comment impairs trust and confidence between the parties or brings the employer into disrepute,” according to the Labour Department website.
Several cases of social media-related dismissals have gone before the courts, with varying decisions.
In one case, a Work and Income employee had described herself as a “very expensive paperweight who is highly competent in the art of time wastage, blame shifting and stationary [sic] theft” on her Facebook page. While the ERA found that she had been justifiably dismissed because of a loss of trust and confidence, it observed that the Facebook comments would not have been sufficient alone to establish this.
In another case, an ambulance offer was refused reinstatement after posting insulting comments about a co-worker on her Facebook page. But the Employment Court downplayed the significance of the Facebook comments as “not the most serious of exchanges between young and somewhat immature employees.” Ultimately, it was the employee’s poor relationship with other staff that prevented her bid for reinstatement.
In a slightly different case, photos of an employee at a sports event posted to his Facebook page were used as evidence of a misuse of sick leave. He was considered to have been justifiably dismissed for serious misconduct.
Key recommendations and responsibilities
Craig Mundy-Smith of Bartlett Law suggests that employers need to keep offending comments in perspective. “The court is unlikely to treat a flippant remark on Facebook as an existential threat to an employer’s business and reputation,” he told The Dominion Post.
Mundy-Smith also observed that employees in these ‘Facebook dismissal’ cases were often ignorant of the impact of their actions. He recommended instituting a clear workplace social media policy to avert this situation.
They also observed that employers may be under obligation to investigate their employees’ use of social media. In a case of suspected online bullying and harassment this would be necessary to comply with health and safety obligations.
Finally, they said that employers should only access employees’ publicly available social media sites.