The Social Media Phenomenon

By Kirsty McDonald, Associate and Sarah Hobson, Solicitor

First published in The New Zealand Lawyer, 29 July 2011

With a social media frenzy taking a firm hold on our lives, it inevitably creates some interesting issues, particularly in the field of employment law.

This is not an area where highly technical laws apply, but instead pre-existing laws are simply being adapted to the digital environment, which is both fast-paced and far-reaching. The use, and more particularly, the misuse, of social media by employees has become an issue for employers to deal with, especially when it occurs both inside and outside of the workplace. Careless social media use by employees, such as disrespectful or negative comments which identify the employer and/or its clients, may damage an employer’s reputation, breach the essential relationship of trust and confidence, justifying disciplinary action, even dismissal.

Many jurisdictions have had to recently address misuse of social media in an employment context and the findings have been relatively consistent.

United Kingdom

Employment Tribunals in the United Kingdom have dealt with several social media cases where dismissals have been upheld.

Unsurprisingly, where there is a clear breach of an employer’s email, internet and/or intranet policy, it will be easier for an employer to demonstrate that an employee has committed an act of serious misconduct. For example, in the case of K C Preece v J D Wetherspoons Plc (2104806/10), an employee who had previously signed an acknowledgement of the employer’s internet policies was found to have committed gross misconduct when that employee subsequently vented her frustration on Facebook whilst at work.

In that case, one evening, the employee (Shift Manager at ‘The Ferry Boat Pub’) was subjected to a torrent of verbal abuse and physical threats by several customers. The employee took to Facebook, entered a number of posts (whilst still on her shift) and made abusive and inappropriate comments about the customers, whom she identified by name. The Tribunal found that the employer genuinely believed that the employee had committed an act of gross misconduct, that the employer had reasonable grounds to sustain that belief, and the dismissal was justified.

Where an employer does not have an express policy guiding employee social media use (outside of the employment agreement) the English Courts do not appear to be any more lenient. The High Court of England and Wales considered a situation where confidential information was transferred by an employee in the form of LinkedIn contacts, for future use in a competing business, in the case of Hays Specialist Recruitment (Holdings) Ltd & Anor v Ions & Anor [2008] All ER 216.

In that case, Hays had an employee who had been a member of LinkedIn for over a year and was actively encouraged to utilise LinkedIn for business purposes. After giving notice of resignation to Hays, it was discovered that the employee had sent invitations to at least two of Hays clients to join his professional network.

Justice Richards considered that an employee recording contact details of some clients (with a view to their future use in a competing business) was potentially a breach of the employee’s employment obligations. Essentially, while an employer may authorise employees to gather contact details on their LinkedIn accounts, that information while gathered in the course of their employment constituted confidential information, which remained the property of the employer.

Canada

Noteworthy is a recent Canadian case, which has gone so far as to state that comments made on Facebook by employees are akin to comments made on the company premises.

The case of Lougheed Imports Limited v United Food and Commercial Workers International Union (B190/2010) concerned two employees who were dismissed for making “disrespectful, damaging and derogatory comments on Facebook”, including the following excerpt:

“ West Coast detail and accessory is a f…. joke…don’t spend your money there as they are f…. crooks and are out to hose you…”

The employer believed that this Facebook discourse along with a number of earlier posts between the employees (who were ‘friends’ on Facebook) had created a hostile work environment and was likely to damage the reputation and business of the employer. Perhaps not unexpectedly, the British Columbia Labour Relations Board agreed there was proper cause for termination.

Australia

Fair Work Australia (“FWA”) appears to have taken the approach that for misuse of social media to constitute serious misconduct, there must be a clear connection to the employer and the misuse must be damaging to the employer’s business.

In the case of Fitzgerald v Dianna Smith (t/as Escape Hair Design) [2010] FWA 7358, an employee was dismissed for a number of reasons, including posting negative comments about her employer on Facebook. The comment was:

“Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo!! The Hairdressing Industry rocks man!!! AWSOME!!!”

FWA found the dismissal to be unfair and held that while the Facebook comments were ‘silly’ and inaccurate, the Commissioner did not consider that they were detrimental to Escape Hair Design’s business or adversely affected the hairdressing industry as a whole. This was particularly so, given that the Facebook post did not reference or identify Ms Fitzgerald’s employer.

The Commissioner did note though, that while such comments could affect an employer’s trust and confidence, in this particular case they were not raised with Ms Fitzgerald immediately. Additionally, her dismissal a month later undermined the argument that the comment had damaged the employment relationship.

In another case, comments made by an employee on her personal Myspace site at the conclusion of a sexual harassment investigation were treated very seriously by the employer, and ultimately the FWA in the case of Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544. A number of factors were relevant to the dismissal of Ms Dover-Ray for serious misconduct, including the publishing of a highly offensive blog alongside her name and picture, and circulating pornographic emails in the workplace. The offending blog post included the following comment:

“I have just been thru an investigation that in the end, advanced corruption…This place covers peoples lives, offering to protect them when catastrophe happens and yet fails to protect the people that work for them. Chasing dollars over safety. Witch hunting. Nothing but witch hunters.”

The blog could be accessed by a simple Google search, and Real Insurance could be easily identified as the employer due to several other employees being friends with Ms Dover-Ray and her picture and name being published. Commissioner Thatcher found that the conduct of Ms Dover-Ray in publishing the blog and not modifying or removing it, as well as distributing emails with pornographic photographs, justified the dismissal.

FWA also recently considered the issue of excessive social media use during work hours, in the case of O’Connor v Outdoor Creations Pty Ltd [2011] FWA 3081. In that case, an employee had apparently exchanged over 3,000 Google chat messages whilst being paid to be at work. Although the Commissioner of FWA held that the excessive use of social media during work hours may justify dismissal, there was insufficient evidence in this particular case to warrant dismissal.

New Zealand

New Zealand has a well publicised selection of examples of social media abuse leading to disciplinary action.

Instances of social media blunders include a 2007 Bebo post which ended in the termination of a Warehouse employee who posted during work hours: “work sux” and working to midnight was “gay like the management”. Similarly, this year a Burger King employee narrowly escaped losing her job when she posted “Real jobs don’t underpay and overwork people like BK does” on a friend’s Facebook wall, despite doing so outside of work hours.

An intention to give “a finite number of people a ‘laugh’” ended with the Employment Relations Authority (“ERA”) declining an application for interim reinstatement in Hohaia v New Zealand Post Ltd AA363/10. Hohaia was dismissed for his fictional, public Facebook pages ‘PostieLad’ and ‘PostieLand’ bringing New Zealand Post into disrepute and for damaging the company’s reputation. The ERA concluded that the nature of the Facebook posts suggested a significant loss of respect, trust and confidence and that his negative attitude towards the employer may “seriously hinder his ability to undergo reinstatement”. The ERA refused his application for interim reinstatement and the matter was subsequently settled.

Last year’s employment saga between Wellington Free Ambulance Service and Alana Adams created much discussion about employee social media use. In that case, Ms Adams was dismissed for misconduct which included sending a co-worker abusive Facebook messages calling him “a prick”, and “a dick”, and telling him that he needed to “learn his place”. Initially, the ERA granted an order for interim reinstatement. On appeal, the Employment Court declined reinstatement for reasons including the poor judgment of Adams in her dealings with former colleagues after her dismissal.

Finally, the ERA investigated Ms Adams’s personal grievance of unjustified dismissal in June 2010. The ERA found that the dismissal was unjustified, largely because the employer had relied upon other incidents to show a pattern, or to satisfy itself that misconduct may be repeated, without giving Ms Adams the ‘other’ information, or giving her an opportunity to respond to it. The ERA also noted that the Wellington Free Ambulance Service could have properly considered the Facebook misconduct as a ‘one-off’ incident and determined appropriate disciplinary action for that incident, particularly given the Facebook exchange had occurred well after the working shift was over.

Interestingly, New Zealand has taken a stand on social media abuse by a former employee in the case of Kaikeri Corporation Ltd t/as McDonalds Kaitia v Davis AA5/08. In that case, the ERA ordered an undertaking by an ex-employee of McDonalds Kaitaia not to make any written statements or post any information on any blog against or about McDonald’s or any of its staff.

What constitutes ‘misuse’?

As evidenced above, the misuse of social media by employees is considered on a case-by-case basis and there are a number of issues to be aware of when considering the ultimate question of what constitutes employee misuse.

Questions that should be considered include:

1. Did the conduct take place during work hours?

2. Did the conduct identify the employer or workplace?

3. Is the conduct detrimental to the employer’s business and/or reputation as opposed to more general comments?

4. Is there a sufficiently clear relationship between the employee’s conduct and the employee’s work?

5. Is the conduct contrary to the employee’s duties or essentially incompatible with the proper discharge of the employee’s duties?

If the answers to some or all of the above questions are “yes”, then disciplinary action by an employer is likely to be justified. Whether the conduct is deemed misconduct or serious misconduct will largely be determined by the nature and extent of the breach. If disciplinary action is appropriate, the onus is on employers to demonstrate sufficient evidence of the relevant allegations.

Considerations for those advising employers

As a basic foundation, it is important to establish a uniform social media policy which clearly informs employees of what is acceptable, and equally what is not acceptable. Such a policy needs to be clear in its expectations, and potential outcomes if breached, and should be clearly communicated to all employees. Like any disciplinary issue, complaints relating to the misuse of social media sites should be dealt with promptly.

We note that while an outright ban on access to social media sites at work may seem like the appropriate way to manage the risk of social media misuse, in our view prevention (with training and monitoring) is likely to be far more effective, particularly as what takes place during work hours is only one aspect of a wider issue.

On a more positive note…

Despite the risk of employee misuse and the potential minefields to avoid (through the use of robust policies), the social media phenomenon can be advantageous to an employer. Online recruiting can minimise the time and hassle of recruiting new employees due to the information that can be accessed on those sites and social media can be a valuable business tool, particularly given networking sites such as LinkedIn are fast gaining credibility as a means of generating new clients or creating business connections.

Like all things in life, to manage the use of social media in an employment context, is ultimately a balancing act.

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