EMPLOYMENT LAW CLAIRE MANSELL
Anti-social media
What can an employer do if an employee is misbehaving online?
D
uring work hours, they are your star employee and the public face of your business. One day, you get a call from a concerned client sending you a link to your employee’s Facebook page. It turns out that your employee has been posting nasty comments all over Facebook. Your client tells you that if you can’t get your employee under control they will be taking their business elsewhere. When you approach your employee they simply shrug and tell you that they have the right to free speech. Don’t stress, you aren’t the only person who has been in this position. Many employer’s may be surprised to find out that they have the right to investigate behaviour which occurs outside work if that behaviour brings the employer’s reputation into disrepute. This may seem straightforward, but can be hard to apply in practice. Recently, Forsyth Barr faced a similar situation with a senior analyst, Mr Hallwright. Mr Hallwright was convicted following 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 Mr Hallwright’s employment, Forsyth Barr was justified in terminating his employment on the basis that his actions brought its reputation into disrepute. 22
HUMAN RESOURCES
WINTER 2019
The Court in Hallwright v Forsyth Barr said that 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 employer and employee. Online behaviour is also captured. Both the Authority and the Employment Court recognise the power of social media to distribute information to a wide audience, even if the employee has a “private” social media account which can only be accessed by their “friends”. The current Chief Judge of the Employment Court puts it this way:
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.
“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?”
Likewise in the case X v Chief Executive of the Department of Corrections, the Employment Court found that the employer was entitled to investigate personal Facebook posts in which the employee made nasty remarks about another staff member (who also happened to be his ex-girlfriend). The employee attempted to argue that the Facebook post was private correspondence and he was merely relaying to his Facebook friends what he understood to be facts. The Judge stated that “While the Facebook post was not published to the world, Mr X must have known the identity of his Facebook friends and that they were, largely, other employees of the Department. He must also have known that his post was capable of being distributed more widely than just to them.” The employer successfully argued that the employee’s behaviour was a breach of its social media policy and so it was entitled to investigate that behaviour.
The Authority has applied this principle a number of times. First instance, it had no issue finding that a public servant who posted on Facebook that she
What type of social media posts will bring the employer into disrepute? It can be difficult to draw the line between the private expressions of
