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Social networking sites such as Facebook and Twitter have become hugely popular in New Zealand. Such sites are a major medium for communication and an every day part of life but can they get you into trouble at work? In recent years, the Employment Relations Authority (Authority) has seen an increase in the number of employment issues arising from incidents involving social networking sites where employees have posted comments expressing dissatisfaction with their employers and / or colleagues.

Case law in New Zealand demonstrates that employers may take matters seriously when an employee posts comments and other material on a public website that is detrimental to the business or adversely impacts on others, including employees.

In Adams v Wellington Free Ambulance Service Inc ERA Wellington WA81B/10, 23 July 2010, the applicant, Ms Adams, was dismissed for serious misconduct following a formal complaint made by a co-worker. The complaint concerned the way Ms Adams had spoken to him on two separate occasions and also referred to abusive comments directed to him by Ms Adams through Facebook where she referred to him as a “prick” and a “dick”. Ms Adams claimed that the Facebook exchange occurred outside of work and therefore it did not concern the employer.

The Authority found that Ms Adams failed to understand that her interactions on Facebook were legitimate areas of concern for her employer. The Authority stated that her actions outside of work were more serious because they showed that her reactions to work incidents were not left at work, but rather she decided to continue the issues in what she believed to be a private forum.

The outcome of the meeting was that an employer is entitled (and obliged if the issue relates to workers’ health and safety) to investigate problems between co-workers, even if the problems occur outside of work, especially if the genesis of those problems is the workplace. This is because such problems can clearly affect relationships in the workplace, which the employer is in control of and responsible for.

This case demonstrates that employees should be very careful about what they say on Facebook about colleagues as these comments can be taken into account by the employer in deciding whether to dismiss (even when the employee’s conduct occurred outside of work).
In Hohaia v New Zealand Post Ltd ERA Auckland AA362/10, 17 August 2010, Mr Hohaia was dismissed for serious misconduct for operating a publicly accessible Facebook page. The respondent argued that the site brought New Zealand Post into disrepute and seriously damaged the reputation of the business. The respondent further claimed that Mr Hohaia undertook and facilitated comments that denigrated and humiliated a work colleague and undermined the leadership and the effective operation of the particular Delivery Branch.

The respondent’s main concern was that the Facebook site was accessible to the public and that when someone made a comment, everyone was able to see it. Mr Hohaia claimed that he did not realise his Facebook page could be viewed and commented on by the public.

It was found that Mr Hohaia’s Facebook posts suggested he had a significant loss of respect, trust and confidence in his employer. The Authority stated that the negative attitude towards New Zealand Post demonstrated by Mr Hohaia may seriously hinder his ability to undergo reinstatement sincerely and fully.

This case demonstrates that Facebook posts would be taken into account when determining whether trust and confidence still exists between an employer and employee.

In Dickinson v Chief Executive Ministry of Social Development ERA Auckland AA508/10, 13 December 2010, a public service employee posted comments on her Facebook page including references to her political views and derogatory and disparaging remarks about public servants. Ms Dickinson described herself as a government employee and “very expensive paperweight”. She continued that she was “highly competent in the art of time wastage, blame shifting and stationary [sic] theft”.

Ms Dickinson was suspended for another matter and had returned to work when the Ministry become aware of the comments posted on her Facebook page. The Ministry viewed the Facebook comments seriously and following an investigation dismissed Ms Dickinson. It was claimed that the dismissal was not made solely on the Facebook comments but on the basis that together with the other charges, the Ministry’s trust and confidence in Ms Dickinson had eroded to such a degree that dismissal was a reasonable outcome.

The Authority found that the Facebook comments themselves would not have justified a dismissal. However, in this case the dismissal was justified because in viewing Ms Dickinson’s employment history and her past behaviour the Ministry concluded that a point had been reached where trust and confidence no longer existed.

This case also shows that Facebook posts will be relevant in determining whether trust and confidence still exists between parties to an employment relationship.

In Taiapa v Te Runanga O Turanganui A Kiwa t/a Turanga Ararau Private Training Establishment [2012] NZERA Auckland 252, 25 July 2012, the employee requested five days’ leave without pay. The manager was reluctant to approve the leave and so she compromised and suggested he could take one day as a lieu day and two days as leave without pay, but he would have to work on the other two days.
The employee did not respond to this offer and took the week in question as sick leave, claiming he had damaged his calf muscle and the doctor told him he needed to take time off work. The following week, he provided a medical certificate saying he had been medically unfit for work that week, but did not give any details of his illness or injury.

The manager investigated the employee’s use of sick leave. She was suspicious for a number of reasons, including a photo that was posted on Facebook taken at Waka Ama while the employee was on sick leave. The photo showed him sitting on a grandstand with a “large female” sitting on his knee, smiling at the camera and giving the thumbs up.

During the disciplinary investigation, the employee did not admit to leaving home while on sick leave. He would not give any details of the medical condition that caused him to take sick leave. He was dismissed for serious misconduct by dishonestly taking sick leave for personal reasons.

The Authority recognised that evidence in support of an allegation of dishonesty must be commensurate with the seriousness of that allegation. In the employee’s case, there was more than enough evidence for the employer to reasonably conclude that he had been at the Waka Ama while he was on sick leave.

The employee claimed he was entitled to manage his health as he saw fit. However, the Authority determined that the employer was justified in concluding that the employee’s actions in not using his sick leave to rest and recuperate at home or seek immediate medical assistance for his illness or injury, and instead travelling four hours to Rotorua and remaining away from home for seven days, amounted to a misuse of sick leave. His dismissal was justified.

This case illustrates how Facebook posts can be used to prove an employee has misused their sick leave.

In the recent case of Hook v Stream Group (NZ) Pty Limited [2013] NZEmpC 188 ARC 23/13 the Employment Court (Court) took the opportunity to comment on the use of material from Facebook. Mr Hook posted the following comments on his Facebook page on 26 July:

Mr Hook: Welp, work found out I am looking for another job today, and I may get in trouble for it. Thoughts?

On 18 August, the following exchanges were posted:
Mr Hook: Going to quit my job tomorrow, while in annual leave. Probably should have timed that better.
Reply: is your boss on Facebook.
Mr Hook: Na. If he was, I’d tell him he is a dick head.
Reply: That’s putting it awfully nicely. I hope he gets mauled by a pack of rabid Dingos.

The Court said that it is well established that conduct occurring outside the workplace may give rise to disciplinary action, and Facebook posts, even those ostensibly protected by a privacy setting, may not be regarded as protected communications beyond the reach of employment processes. “How private is a written conversation initiated over the internet with 200 “friends”, who can pass the information on to a limitless audience?” The Court went on to say that comments made on virtual social networks can readily permeate into real-life networks and “Facebook posts have a permanence and potential audience that casual conversations around the water cooler at work or an after-hours social gathering do not.”

The cases that the Court referred to in Hook recognise that Facebook is not a strictly private forum and therefore even if your privacy settings are high it is simply not worth posting disparaging comments regarding work.

If you discover your employees are publically posting disparaging comments about you, other staff or your business, make sure you follow a full and fair process to investigate and if appropriate take disciplinary action.  Even if you don’t think staff behave badly behind your back on social networking sites, we recommend that all employers carefully craft a policy on social networking that clearly outlines what kind of comments and behaviour is acceptable.  Please contact one our team if you would like any assistance in this area – we would be happy to help.