Following recent events, some employees are discovering that their social media activity is coming under scrutiny. As an employer, when can you become involved if your employee is posting vitriolic comments on Facebook?

It is well established that an employee's behaviour which occurs outside the workplace can be subject to disciplinary action if that behaviour brings the employer's reputation into disrepute. The most well known example of this occurring is the case of Hallwright v Forsyth Barr. Mr Hallwright, a senior analyst at Forsyth Barr, was convicted after 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 his employment, his employer was justified in terminating his employment on the basis that his actions brought its reputation into disrepute.

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 parties.

Behaviour which occurs solely online is also captured. Both the Employment Relations Authority and the Employment Court recognise the power of social media to disseminate information to a wide audience, even if the employee has a "private" social media account. The current Chief Judge of the Employment Court has previously stated:

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?

The ERA has had no issue with finding that a public servant who posted on her Facebook page that she 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. In that case, the Facebook posts alone did not justify dismissal. However, given the employee's past misconduct, dismissal was appropriate.

So, vitriolic Facebook comments, even on a private Facebook account, could potentially be grounds for disciplinary action up to dismissal. Whether an employer's actions are justified will depend on the specific nature of each case. Amongst other things, employers will need to weigh up the nature of the social media posts, the effect that those posts could have on its reputation and the nature of the employee's role. Employees who are in senior positions or who represent their employer in public will face greater scrutiny. A well drafted social media policy will also assist employers in this regard, particularly if it has been created in consultation with employees.

However, it is a timely reminder to employees that their behaviour on social media can have real world consequences. For employers, it may be time to start looking at how your employees are representing your organisation on social media.