Employment Law
Employment Law

Social Media and the Workplace

For many of us, social media has become a vital part of our lives. Instead of reading the newspaper with a steaming hot coffee, many of us will start our days by checking Facebook, Snapchat, Instagram and the like. Social media is definitely a great tool for socialising, voicing your opinion, and keeping in touch with friends and family. However, how much is too much? Would you friend your boss on Facebook? Would you follow your team Leader on snapchat? Would you follow your boss’s dog on Instagram?

BE CAREFUL WHAT YOU POST!

Be careful what you post: your employer may be justified in dismissing you for your actions on social media. With social media becoming much more prevalent in the current age, the Employment Relations Authority (ERA) has had many cases before it which involve this very question. In Blylevens v Kidicorp Ltd , the ERA held that an employee was justifiably dismissed after they “liked” two Facebook posts made by their employment advocate which made derogatory comments about her employer.

The first post was headed “Kidicorp” strikes again, and claimed 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.” The advocate implied that Kidicorp was an unsafe environment for staff and children, and recommended that parents “may want to seriously rethink the level of care [their children] can receive.”

In another case, Dickinson v Chief Executive, Ministry of Social Development, the ERA found that an employee was justifiably dismissed after a complaint from the member of the public about their Facebook page. The comments on the page included references to her political views as “hard core left wing conservative”, her favourite quotations included “hey boss, can I go home sick????” and a description of herself as a government employee and “very expensive paperweight who is highly competent in the art of time wastage, blame shifting and stationary [sic] theft.” Although the Member found that the Facebook entries in themselves did not justify dismissal, when considered in the context of the employee’s history and her past behaviour, the employer was entitled to consider that trust and confidence no longer existed between the parties.

And if you think you’re safe because your page is set to “private”, you’d be wrong. In fact, in one case the ERA has ordered access to an employee’s “private” Facebook page so that the employer could ascertain whether the employee was genuinely sick, or whether they were misusing their sick leave. As Judge Christina Inglis noted in the Employment Court case Hook v Stream Group (NZ) Pty Ltd : “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?” To use an analogy, social media is the 21st-century version of a town square: there are lots of people ready to take part in the next exciting event, and many whom are ready to share your stories with others.

THE IMPLICATIONS OF BEING “FRIENDS” WITH YOUR EMPLOYER/EMPLOYEE

However, the risks of social media don’t end there. As an employee, how would you feel if your manager, team leader or employer were to unfriend and block you on social media? This is a concern; as the dependency for social media seems to grow, the lines between “personal” and “professional” relations also blur. Imagine this, you have started a new job and immediately after being placed under Ms Smith (team leader), you receive a friend request on Facebook from her. This is common practice in the team; Ms Smith has friended everyone in her team so that she can control a group Facebook Messenger to inform staff of overtime and be kept up-to-date on any situations when she’s away. Everything seems to be going well, until 6 months in you notice that you have been unfriended from Ms Smith. Perhaps there was an argument at work about your hours, or perhaps you were unhappy about how she managed a situation. Either way, here you are, unfriended. You may be a part of Ms Smith’s team in the workplace, however, you are not a part of the team on Facebook. How does this make you feel? What are the implications of this?

At Phil Butler Employment Law, we believe that there are a lot of risks associated with using social media as a medium in your workplace. In the above situation, the employee may begin to feel excluded and ostracised. Perhaps, he or she may go so far as to claim workplace bullying. Or, perhaps, they believe that this is evidence that the working relationship is damaged. In either case, the act of “unfriending” is not a good look for the employer.

We would advise that employers have clear policies regarding the use of social media and ensure that their employees in “team leader” or “managerial” positions be cautious about creating personal Facebook relations. If an employee is unfriended or blocked during the course of the employment, this may make an employee feel uncomfortable about the working relationship with this person.

To go a step further, there is the issue of where an employee raises an employment relationship problem with the employer and have subsequently been “unfriended” or “blocked” on social media as a result of this process. Now, we need to stress; although the relationship may be ongoing, the “unfriending” or “blocking” of an employee sends a clear signal that the employer would rather rid themselves of that particular employee. Not only does this add to the hurt and humiliation suffered by the employee, but it also places the employer in a precarious position when trying to resolve the issue.

All in all, each situation will always rest on its own facts. For example, if you were friends with a person prior to commencing employment, or if you subsequently built a friendship with an employer through a common interest, the use of social media may be appropriate. But, it does beg the question: how much is too much?

Published on Friday, July 13th, 2018, under Blog

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