With an estimated 2.5 billion monthly active users worldwide, and nearly three million of them living in New Zealand, Facebook’s influence on the way we communicate online is undeniable. Facebook enables us to share our joys and sorrows, our political thoughts, and yes, even our frustrations about our jobs, employers and colleagues.
However, employees need to be aware that there is a growing body of case law which has upheld dismissals for disparaging, negative Facebook comments by employees, and that is even when the employer has not specifically been named.
One of the earlier decisions is from 2013, Hook v Stream Group (NZ) Pty Limited [2013] NZEmpC 188. Although the Facebook evidence in that case was used as evidence that the employee had voluntarily resigned, and had not been dismissed, Judge Inglis (now Chief Judge of the Employment Court), set out some important principles that have been relied on in the cases which followed.
Of particular importance were Judge Inglis’ comments that posts on Facebook cannot be considered private or protected and beyond the reach of employment processes, irrespective of the user’s privacy settings, with her stating “….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… Facebook posts have a permanence and potential audience that casual conversations around the water cooler at work or at an after-hours social gathering do not…”
The following year, another employee was dismissed for liking and commenting on a derogatory Facebook post, made about her employer, by an employment advocate who was representing her. In the case of Blylevens v Kidicorp Limited [2014] NZERA Auckland 373, Rachel Byleven’s advocate, Rachel Rolston, made a post on Facebook under the heading “Kidicorp Strikes Again.” The post made claims that Kidicorp was “removing unwanted staff”, “lots of them” by “allegations of bullying” involving “trumped up charges, tampered with or totally fake documents, refusal to allow a target to have a support person.” Rolston implied that Kidicorp provided an unsafe environment for staff and children and recommended that parents “may want to seriously rethink the level of care [their children]can receive.”
On the same day, Blylevens “liked” the post and commented “…“Interesting article pep! As a parent looking at childcare it’s good to be informed x…” Rolston made a second similar post two days later, and once again, Blylevens liked the post. The Authority held that Blyleven’s actions of liking and commenting on the posts “…were analogous to her standing outside the Centre she managed handing out copies of Ms Rolston’s derogatory articles about Kidicorp while telling people ‘here is an interesting article — it is good to be informed.’ I find that it was open to a fair and reasonable employer to have concluded that publishing derogatory comments about it to a potentially unlimited audience is a fundamental breach of an employee’s duty of fidelity.”
The noose has continued to tighten on employees’ Facebook posts with a determination that was published by the Employment Relations Authority in December 2019, where the dismissed employee did not even name his employer he was complaining about, but his subsequent dismissal was still considered justified.
In the case of Jun v Dollar King Limited [2019] NZERA 722, Hyowon Jun posted negative comments about his employer on a Korean Facebook page called “New Zealand Story.” The Facebook page has more than 15,000 followers. Jun’s comments accused his employer of exploiting workers, and said that he was being persecuted. Although not naming his employer, he did state that “… he worked for a two dollar shop located in a small city on the way to Taupo from Auckland.” The employer learned of the posts from others who had seen them and recognised that the employer was Dollar King. The Authority also held that Jun’s name was associated with the post, so anyone who knew where Jun worked would have then been able to identify Dollar King as the subject of the posts. Although Jun was successful on some other unjustified disadvantage/Holiday Act breaches, his dismissal for the Facebook posts was upheld as justified.
So, while dismissals for derogatory Facebook posts about an employer are likely to be upheld as justified, what can an employer do about the actual posts themselves?
First, where a post has the appearance of harassment (particularly relevant where it names the employer and other employees), you can complain about the post to Facebook by going to the three dots at the top right of the post and left-clicking. The option to report the post will be visible. Once you have reported the post, you will quickly receive a response from Facebook stating that it doesn’t go against their community standards. You can seek a review, although whether that would be any more successful is unknown.
Netsafe is another avenue of complaint, and while they cannot be faulted for their concern and diligence, they too face the same responses from Facebook.
An employer’s best defence to these posts is to have a robust social media policy which clearly informs employees that posting negative/derogatory comments about the employer (whether named or otherwise) on any social media, will be treated as serious misconduct resulting in disciplinary action up to and including, summary dismissal.
Employer’s should also ensure they have a confidentiality clause in all individual employment agreements that clearly includes in the definition of confidential information, “any information about the employer, employees or clients that is not in the public domain”. The confidentiality clause should further state that it is in place both during the period of employment and following its termination. Ex-employees can then also be liable for penalties for breaching the employment agreement, as can any person who aids and abets a breach, pursuant to sections 134(1) and (2) of the Employment Relations Act 2000.
