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1 This is an example of a cover page. Themes in Employment Law October 2011 The Dangers of Social Networking in an Employment Context

2 NB: The comments included in this publication should not be read as representative of the view of the Court, Authority, or the Department of Labour. Rather, any view expressed is in the nature of an opinion only. Crown Copyright: All rights reserved. No part may be reproduced or copied in any form or by any means without the prior permission of the copyright owner except in accordance with the provisions of the Copyright Act All requests for reproduction of any material in the Themes on Employment Law should be addressed to: Department of Labour, Business Services, Information Management, Senior Advisor - Knowledge Management, PO Box 3705, Wellington. WARNING: The doing of any unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution.

3 THE DANGERS OF SOCIAL NETWORKING IN AN EMPLOYMENT CONTEXT Introduction The number of employment issues arising from incidents involving social networking sites has increased over recent years as sites such as Facebook have become more popular in New Zealand. Problems arise when employees post comments about their employers or colleagues, often for all to see, or when work-related issues are not left at work. This theme will discuss how these scenarios have been dealt with by the Employment Relations Authority as well as other potential problems that social media users could encounter in relation to their employment. Facebook Facts Social media sites have become hugely popular since Facebook began in early According to their website, at the time of writing this theme there are more than 800 million Facebook users worldwide. The website also confirms that Facebook users spend over 700 billion minutes per month on Facebook, with the average user uploading 90 pieces of content per month such as web links, news stories, blog posts and photo albums. 1 MySpace and Twitter are two other popular social media sites with the former once being the most used social media site. Although MySpace s popularity has well and truly been surpassed by that of Facebook, there are still more than 40 billion MySpace page views per month. 2 Twitter has not yet reached the same levels of popularity in New Zealand that it has in the US, but it has an estimated 280 million accounts and is growing rapidly. 3 Facebook and similar social media sites were created as a social utility to help people communicate more efficiently with their friends, family and co-workers. 4 However, in terms of workplace relations, there are instances when these sites can get you into trouble. When Social Media will get you into Trouble Problems have arisen in the workplace when employees have either: Posted comments about their employer and co-workers; and When employees have used social media during work time. Dismissals relating to the use of social networking sites have occurred both in New Zealand and overseas. Taking into account the number of social network users and considering that these users commit a considerable amount of time on using social network websites, it is only logical that access will also affect workplace relationships. Essentially, these cases show that social networking users should be weary of accessing these websites while at work. 1 Facebook Statistics, downloaded 3 October Interesting Facts, downloaded 3 October Social Media Informer, downloaded 3 October Facebook Fact Sheet, downloaded 27 June 2011

4 Recently, in Australia there was a case where a worker was dismissed for excessive use of the social media device Google chat. The Fair Work Australia commissioner Anne Gooley said that while excessive use of social media during work hours may justify a dismissal, there was insufficient evidence to dismiss the employee. 5 Social networking websites can also affect a person s employability. A survey released by social networking provider Viadeo said that 62 percent of British employers use social media sites to screen candidates. A quarter of these prospective employers rejected candidates as a result of information viewed on their Facebook, Bebo or MySpace sites. Employers claimed they were concerned about excess alcohol abuse, ethics, and job disrespect. 6 Another example of when social networking may lead to an employment relationship problem occurred in late 2007, when an employee of the Department store retailer The Warehouse was dismissed after posting comments about her workplace on the social networking site Bebo. She was fired for serious misconduct after posting inappropriate comments concerning her job and her management. The Warehouse claimed that the employee s comments brought the company into disrepute. It appears that no personal grievance was pursued in this matter or, if there was, it did not reach the Employment Relations Authority. However, there may be serious repercussions for comments such as these, as the cases below demonstrate. Adams v Wellington Free Ambulance Service Incorporated: In Adams v Wellington Free Ambulance Service Incorporated 7 the applicant, Ms Adams, was dismissed for serious misconduct following a formal complaint made by a co-worker. Ms Adams co-worker made a complaint against her concerning 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. Ms Adams claimed the Facebook exchange occurred outside the working shift and therefore was of no concern to the employer. 8 The Employment Relations Authority (Authority Member Greg Wood) found that the Facebook comments supported the respondent s argument that Ms Adams had inbuilt negative characteristics. The Authority reasoned that the Facebook comments demonstrated similarities to how the witness from another communications centre was treated by Ms Adams less than a year before the incident subject to complaint. Ms Adams, on both occasions, used strong and abusive language, which took place some time after the incidents said to have triggered these emotions occurred. 9 It was found that Ms Adams failed to understand that her interaction on Facebook was a legitimate area of concern for her employer. The Authority stated that the Facebook comments were more serious because they showed that Ms Adams reactions to 5 Sydney Morning Herald, gnlt.html, downloaded 29 June Auckland District Law Society, Employment Law Conference Current Issues and Best Practice for Lawyers, 20 June unreported, G Wood, 23 Jul 2010, WA 8A/10 8 Adams v Wellington Free Ambulance Service Incorporated unreported, G Wood, 23 Jul 2010, WA 8A/10 9 Adams v Wellington Free Ambulance Service Incorporated unreported, G Wood, 23 Jul 2010, WA 8A/10

5 workplace incidents were not left at work. She instead continued the issues outside of work, in what she believed to be a private forum. 10 The outcome of this investigation meeting was that an employer is entitled, and often obliged if the issue relates to workers health and safety, to investigate problems between co-workers. This is so even if the problems occur outside of work and especially if the problem arises in the workplace. The reasoning behind this is that problems can clearly affect relationships in the workplace, which the employer is in control of and responsible for. 11 Therefore Facebook exchanges would be taken into account in investigating issues between colleagues, even if they occurred outside the workplace. This case demonstrates that employees must 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. This is so even though the employee s conduct occurred outside of work. Dickinson v Chief Executive Ministry of Social Development In Dickinson v Chief Executive Ministry of Social Development, 12 a public service employee posted comments on her Facebook page including references to her political views and derogatory remarks about public servants as slothful and exploitative. 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. 13 Ms Dickinson had already received a final warning for a serious breach of the Code of Conduct when she was suspended following being charged with arson. Ms Dickinson had returned to work following the suspension when the Ministry became aware of the comments posted on Ms Dickinson s Facebook page. The Ministry viewed the Facebook comments seriously and following an investigation dismissed Ms Dickinson. However, it was claimed that the dismissal was not made solely on the Facebook comments but on the basis that together with the arson charges, the Ministry s trust and confidence in Ms Dickinson had eroded to such a degree that dismissal was a reasonable outcome. 14 The Employment Relations Authority (Authority Member Dzintra King) found that the Facebook comments were unfortunate. However, the political references did not undermine the need for neutrality in the public service. However, it was found that the comments were derogatory of the public service and they were disparaging. 15 In relation to the justification for the dismissal, it was found that the Facebook entries themselves would not have justified a dismissal. However, in the context of Ms Dickinson s employment history and her past behaviour, the Ministry was entitled to 10 Adams v Wellington Free Ambulance Service Incorporated unreported, G Wood, 23 Jul 2010, WA 8A/10 11 Adams v Wellington Free Ambulance Service Incorporated unreported, G Wood, 23 Jul 2010, WA 8A/10 12 unreported, D King, 13 Dec 2010, AA 508/10 13 Dickinson v Chief Executive Ministry of Social Development unreported, D King, 13 Dec 2010, AA 508/10, p.3 14 Dickinson v Chief Executive Ministry of Social Development unreported, D King, 13 Dec 2010, AA 508/10 15 Dickinson v Chief Executive Ministry of Social Development unreported, D King, 13 Dec 2010, AA 508/10

6 consider that a point had been reached where trust and confidence no longer existed. The dismissal was justified. 16 This shows that Facebook posts will be relevant in determining whether trust and confidence still exists between parties to an employment relationship. However, in this particular scenario the comments did not on their own justify dismissal. Hohaia v New Zealand Post Limited: In Hohaia v New Zealand Post Limited, 17 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. 18 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 he did not realise his Facebook page could be viewed and commented on by the public. 19 Mr Hohaia was advised in considerable detail of the respondent s concerns before the disciplinary meeting was held. New Zealand Post viewed many of the Facebook entries, if they were accessible to the public, as capable of bringing New Zealand Post into disrepute or seriously damaging the reputation of its business. Some of the comments in relation to a work colleague were sexual in nature and others undermined the leadership of the particular Delivery Branch. New Zealand Post viewed these comments as unacceptable and in breach of provisions of the employment agreement. Under the employment agreement, New Zealand Post employees were expected to be honest and professional in dealings with the public and with each other. They were also expected to be customer focused and use their initiative. 20 The Authority considered whether Mr Hohaia should be reinstated pending the hearing of the substantive matter. It was found that the impact of potentially contributory behaviour on the remedy of permanent reinstatement had to be considered. New Zealand Post s concerns about Mr Hohaia s conduct were that it affected other employees who were referred to in a disparaging and discriminatory way, and also customers of the business and members of the public served by New Zealand Post. 21 It was found that at the very least the nature of Mr Hohaia s Facebook posts suggested Mr Hohaia 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 might seriously hinder his ability to undergo reinstatement sincerely and fully Dickinson v Chief Executive Ministry of Social Development unreported, D King, 13 Dec 2010, AA 508/10 17 unreported, A Dumbleton, 17 Aug 2010, AA 362/10 18 Hohaia v New Zealand Post Limited unreported, A Dumbleton, 17 Aug 2010, AA 362/10 19 Hohaia v New Zealand Post Limited unreported, A Dumbleton, 17 Aug 2010, AA 362/10 20 Hohaia v New Zealand Post Limited unreported, A Dumbleton, 17 Aug 2010, AA 362/10 21 Hohaia v New Zealand Post Limited unreported, A Dumbleton, 17 Aug 2010, AA 362/10 22 Hohaia v New Zealand Post Limited unreported, A Dumbleton, 17 Aug 2010, AA 362/10

7 This further demonstrated that Facebook posts would be taken into account when determining whether trust and confidence still exists between parties to an employment relationship. The public nature of these particular Facebook comments meant that they had to be taken seriously. Conclusion The increasing popularity of social media worldwide has been incredible. Therefore it is not surprising that employment relationship problems such as dismissals for comments on social media have also increased over recent years. The latest cases have shown that employers can take social network posts that occur outside of work into account in deciding whether to dismiss an employee for serious misconduct. Facebook posts can also be considered in deciding whether trust and confidence between the parties has been impaired. However, so far there has been no test case establishing at what point a Facebook or any social network comment impairs trust and confidence between the parties or brings the employer into disrepute. With the rapid growth in social media usage, this is likely to change. In the future there will no doubt be a case that will establish the approach the courts will take in resolving employment relationship problems that arise through the use of social media.

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