By Claire Mansell - 27 Mar 2019
Following recent events, some employees are discovering
that their social media activity is coming under scrutiny. As an
employer, when can you become involved if your employee is posting
vitriolic comments on Facebook?
It is well established that an employee's behaviour which occurs
outside the workplace can be subject to disciplinary action if that
behaviour brings the employer's reputation into disrepute. The most
well known example of this occurring is the case of Hallwright
v Forsyth Barr. Mr Hallwright, a senior analyst at Forsyth
Barr, was convicted after a road rage incident. The incident
attracted significant media attention, which identified both Mr
Hallwright and his employer. Despite the event occurring outside
work hours and not being directly related to his employment, his
employer was justified in terminating his employment on the basis
that his actions brought its reputation into disrepute.
An employer may be justified in taking disciplinary action
against an employee if it can show that the employee's
behaviour:
- Damaged its business;
- Is incompatible with the proper discharge of their duties;
- Impacts other employees; or
- Undermines the necessary trust and confidence between the
parties.
Behaviour which occurs solely online is also captured. Both the
Employment Relations Authority and the Employment Court recognise
the power of social media to disseminate information to a wide
audience, even if the employee has a "private" social media
account. The current Chief Judge of the Employment Court has
previously stated:
Facebook posts, even those
ostensibly protected by a privacy setting, may not be regarded as
protected communications beyond the reach of employment processes.
After all, how private is a written conversation initiated over the
internet with 200 "friends", who can pass the information on to a
limitless audience?
The ERA has had no issue with finding that a public servant who
posted on her Facebook page that she was a "very expensive
paperweight who is highly competent in the art of
time wastage, blame shifting and stationary [sic] theft'
could be subject to disciplinary action. In that case, the Facebook
posts alone did not justify dismissal. However, given the
employee's past misconduct, dismissal was appropriate.
So, vitriolic Facebook comments, even on a private Facebook
account, could potentially be grounds for disciplinary action up to
dismissal. Whether an employer's actions are justified will depend
on the specific nature of each case. Amongst other things,
employers will need to weigh up the nature of the social media
posts, the effect that those posts could have on its reputation and
the nature of the employee's role. Employees who are in senior
positions or who represent their employer in public will face
greater scrutiny. A well drafted social media policy will also
assist employers in this regard, particularly if it has been
created in consultation with employees.
However, it is a timely reminder to employees that their
behaviour on social media can have real world consequences. For
employers, it may be time to start looking at how your employees
are representing your organisation on social media.
If you have any concerns arising from this article contact Claire
Mansell.