Sharing material on social media may have employment repercussions

1 Apr 19

Column written by Dunedin Partner John Farrow, published in the business section of the Otago Daily Times on Monday 1 April.

The GoPro footage of the Christchurch terrorist attack has prompted debate about the policing of social media sites. A number of corporates have withdrawn their advertising from Facebook and there have been stories of employees being dismissed for sharing the footage or for posting offensive comments. It is not clear from the reporting of these dismissals whether the employees were posting during work time and whether they were using workplace equipment. Even behaviour outside the workplace in an employee’s own private time can justify dismissal.

Most workplaces have email and internet policies. Generally, these make it clear that the electronic information stored or used in the course of employment can be accessed by the employer. Email addresses and internet are business resources which are to be used for business purposes only. Email messages become part of the employer’s computer system and the employer’s property. The employer can intercept and read any email message being sent or received. The policies generally also detail that the employer can access all email or internet information, or review back-up facilities to ensure policies are adhered to. Most policies, however, allow for limited reasonable personal use.

In response to growing concern about electronic communications, the Harmful Digital Communications Act was enacted in 2015. It aims to deter, prevent and lessen harmful digital communications. It covers any form of electronic message. The Act lists 10 communication principles which detail what such communications should not include (e.g. sensitive personal facts; threatening, intimidating or menacing content). An individual can complain to NetSafe if they receive a digital communication in breach of any of these principles. NetSafe is authorised to investigate alleged breaches and help find resolution. It is also an offence to cause harm by posting digital communications. Where a harmful digital communication is posted from an employer’s email address, the employer may be required to take urgent steps to remove that content in accordance with the complaints procedure detailed in the Act.

Conduct outside of the workplace can justify dismissal. However, there has to be a sufficient connection between that conduct and the employment. The court has held that it is not so much where the conduct occurs but rather its impact, or potential impact, on the employer’s business including:

  • Reputational damage to the business.
  • Conduct that is incompatible with employee’s proper discharge of their duties.
  • Conduct which impacts on the employer’s obligations to its other employees.
  • For any other reason that undermines the employer’s trust and confidence in its employee.

The court has also found that Facebook posts, even those ostensibly protected by a privacy setting, may not be regarded as protected communications beyond the reach of employment processes. In a recent case, a male employee was dismissed for his behaviour towards two female colleagues. He unsuccessfully challenged the dismissal in both the Employment Relations Authority and the Employment Court. His behaviour included a post on his Facebook page of photographs of the colleagues involved and a comment that one of them had a sexually transmitted disease. The post occurred late at night, when the employee was distressed. It was removed the following day and his Facebook account closed. It was only available to his Facebook friends because of the privacy settings and was not accessible to the public at large. Despite this, the court found that the employee must have known his post was capable of being distributed more widely than just to his Facebook friends. The dismissal was held to be justified.

Other cases involve employees ‘‘liking’’ and ‘‘commenting’’ on derogatory comments about their employer. The Employment Relations Authority has found that this behaviour amounts to endorsing disparaging views of the employer. Whether or not an employee can be dismissed for posting or reposting content about the terrorist attack (or other objectionable material) will be fact-specific. If the employee deliberately or inadvertently identifies their connection with their employer, there is a very real potential to cause reputational damage. Posting and reposting of footage and anti-Muslim comments could well be found to be incompatible with the proper discharge of an employee’s duties and could undermine an employer’s trust and confidence in its employee.

Irrespective of the employee’s behaviour, the employer must follow fair process. This will include properly investigating the alleged conduct and allowing the employee to provide explanation for that conduct. The employer must conduct itself in a ‘‘fair and reasonable’’ manner and give full consideration to any explanation given and all possible disciplinary sanctions before making any final decision.

We have all been shocked to the core by what happened in Christchurch. Employees need to think very carefully about, not only their postings and communications when using their employer’s facilities, but also about their private postings in their own time.
Employers are fully entitled to set workplace cultural expectations and require their employees to abide by them. However, employers should be cautious not to immediately respond to what appears to be objectionable employee behaviour without first allowing the employee a proper opportunity to explain themselves.


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