Consequences of complaining about work online

Rob Towner, Partner and Anna Clark, Senior Solicitor | Wednesday 6 May 2009

The impact of social networking sites like Facebook and MySpace on employment issues is broadening.

Employers' use of the sites to screen job applicants has been well documented and discussed but in recent developments overseas, negative comments posted on these sites by employees about their jobs or employers have led to their dismissal.

The overseas examples

In the UK, Virgin Atlantic dismissed 13 employees after they posted messages on Facebook that were critical of the airline's safety standards and derogatory towards customers. British Airways launched an investigation after comments describing travellers as "smelly" were posted online by employees. An employee of British retailer Argos was dismissed for setting up a Facebook thread called "I work for Argos and can't wait to leave because it's shit", and an office administrator in the UK was sacked after her manager, while surfing the web, found comments she had posted on Facebook saying "all i do is shred holepunch n scan paper!!! omg!" "im so totally bord!!!" Her employer, a product development and sourcing company, said when dismissing her "following your comments on Facebook about your job and the company we feel it is better that, as you are not happy and do not enjoy your work, we end your employment with immediate effect". When questioned, her former boss said that "her display of disrespect and dissatisfaction undermined the relationship and made it untenable".

In the New Zealand context

So does an employee venting online about their job justify dismissal in New Zealand?

If the employee posts the offending comments during work time, and using the company's IT resources, then the first port of call should be the company's internet policy. Does it allow personal use of the internet during work hours, and if personal use is allowed, does it set clear limits on what is and isn't acceptable personal use? Does the policy go as far as prohibiting employees from making posts online (inside and outside of working hours) in which they identify their employer and are critical of their work?

If the employee's online activities amount to a serious breach of the policy or term of the employment agreement, then the employer may be able to justifiably dismiss the employee after having carried out a full and fair investigation and disciplinary process. The employer will need to be able to show that the dismissal was the action of a fair and reasonable employer in all of the circumstances at the time.

Dismissal may be more difficult to justify when an employee makes the offending posts outside of work. The courts have held that misconduct outside of the workplace can justify dismissal where it has the effect of undermining the trust and confidence that is inherent in an employment relationship. This can include conduct that brings the employer into disrepute or that is incompatible with the proper discharge of the employee's duties. In order to justify a dismissal on the basis of conduct outside of the workplace, there must be a clear relationship between the conduct and the employment. While the conduct must have an impact or potential impact on the employer's business, an employer does not have to wait for that negative impact to actually manifest before dismissing the employee.

It's unlikely that the dismissal of the office administrator who made her boredom at work clear to all on the web would be justified in New Zealand (particularly as she never identified the company by name). In fact, the subsequent media attention her dismissal brought about was probably far more damaging to her employer than her initial posts. Even if she had named the company, it is unlikely that comments simply about boredom at work would justify her dismissal. However, dismissal could be justifiable in circumstances where an employee makes disparaging comments about management online or other public criticism about the company which could bring the company into disrepute.

Guide for concerned employers

If an employer has concerns about the way an employee is portraying their job or the company on the internet, the first step is to look at the company's internet policy. Are the comments in breach of the policy (and if they're not, is it time the policy was updated)? Even if the situation is not covered by company policies, if the comments can be shown to undermine the employer's trust and confidence in the employee, then the employer may have grounds to justify taking disciplinary action.

In any event it would be prudent for employers to review the company internet policy to include express guidelines for employees on personal use of Facebook, Twitter and similar websites (if such personal use is permitted), particularly around references to the company and aspects of the employee's job.

 

For further information, please contact your usual Bell Gully adviser or:

Rob Towner
Partner

Michelle Banfield
Senior Associate

Liz Coats
Solicitor

Susannah Leslie
Solicitor