An Air New Zealand flight attendant who was forced to give her employer access to her Facebook page over suspicion she was using her sick leave disingenuously has had her dismissal deemed unjustifiable in the NZ courts. The full case can be read about here.
“An employer has no right to demand that an employee provide details such as Facebook posts or bank details,” Elizabeth Ticehurst, senior associate at DLA Piper, told HC when discussing how a similar case may play-out in Australia.
Australian employers can only demand evidence that an employee was actually ill or caring for a family member, which boils down to a doctor’s certificate or statutory declaration. Ticehurst added that this should be outlined in the employment contract.
However, employers can request the information if they have reasonable suspicion that the leave was taken inappropriately. The information can also be subpoenaed by the Australian courts.
“The Fair Work Commission also has the power to require persons to provide copies of documents, records or information, which would include information on Facebook,” Ticehurst explained.
An employer is able to use social media posts or photos they have seen (by being connected with the employee or being shown them) as grounds to make a reasonable determination about whether the employee had a valid reason to take personal leave.
While the FWC has accepted Facebook posts as grounds for dismissal before, using social media posts as evidence is high risk.
“It can be difficult to prove whether the posts were made by the account holder themselves, and the postings may not be indicative of anything other than the poster's frame of mind at the time of posting,” Ticehurst said.
Having a strong foundation of evidence is important, as the employer must prove the dismissal was valid. In the context of an unfair dismissal claim, the employer must prove their reason was ‘sound, defensible or well founded’.
“Disputes like this may be avoided if the employer is able to be flexible about acceptable evidence of the employee's reason for taking the leave,” Tichehurst explained. “If medical evidence is unavailable, alternative evidence such as vehicle toll records, photographs or phone records may be used to establish the employee's whereabouts and activities. There is also the option of a statutory declaration, which would expose the employee to a penalty if they make a false statement.”