HRD takes a look at the legalities of dismissing an employee for social media misconduct
Dismissing an employee for social media conduct depends on multiple factors, according to Hamish Kynaston, partner at Buddle Findlay.
Firstly, if the incident takes place during work time and on work equipment the employee risks disciplinary action.
Moreover, if the employer has specific rules in place and those rules are breached then that might lead to a finding of misconduct and then ultimately dismissal.
“If an employee’s conduct on social media outside of work and outside of work equipment is unacceptable then an employer may still be able to discipline or dismiss an employee,” said Kynaston.
“Again, there has to be some connection to the workplace and some impact on the employer that might be abusive comments that undermine work, that undermine colleagues, that harass or bully.”
“The comments might have an impact on the trust that the employer has on the employee.
“In those circumstances an employer can have a genuine interest and discipline or dismiss if the conduct is unacceptable.”
A notable case in New Zealand involved a childcare centre manager who was dismissed for 'liking' a negative Facebook post about her employer. The case highlights the need for having social media policies for employees, on and off the job.
A few years ago Rachel Blylevens was dismissed by Kidicorp in Tauranga after working for the company for more than two years.
Blylevens 'liked' and commented on a number of posts about her employer on the social network and engaged an advocate, Rachel Rolston, to help her with the posts.
Among other things, Rolston described Kidicorp in posts as a “toxic” environment and accused the company of “corporate bullying”.
Kidicorp’s investigation found that the employee’s actions breached its media and social networking policy and led to a loss of trust and confidence.
According to Employment Relations Authority member Rachel Larmer, the fact that Blylevens 'liked' the posts meant all her Facebook friends could see it in their newsfeed and the audience for those was virtually unlimited.
'Liking' the posts, according to Larmer, meant an endorsement of the opinions expressed in those comments.