Facebook and disciplinary issues in employment

Facebook and disciplinary issues in employment

In late 2013, the Employment Court gave its most definitive judgment on the issue of how an employer may treat Facebook posts, made by employees, that are adverse to the employer’s interests.

The key aspect that comes out of the decision for me is the Court’s position that Facebook is a public forum. This is regardless of the employee’s privacy settings or intention that only a select few “friends” would have access to a given post.

The Court recorded as follows:

“It is apparent that the increased use of social networking sites by individuals to express dissatisfaction with their employers is becoming more prevalent. This carries risk. It is well established that conduct occurring outside the workplace may give rise to disciplinary action, and Facebook posts, even those ostensibly protected by a privacy setting, may not be regarded as protected communications beyond the reach of employment processes. 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?”

and

“The reality is that comments made on virtual social networks can readily permeate into real-life networks. Facebook posts have a permanence and potential audience that casual conversations around the water cooler at work or at an after-hours social gathering do not.”

The court than went on to endorse passages from an Australian decision that recorded as follows:

“The nature of Facebook (and other such electronic communication on the internet) means that the comments might easily be forwarded on to others, widening the audience for their publication. Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees.”

facebook app displayed on mobile phone

“The reality is that comments made on virtual social networks can readily permeate into real-life networks. Facebook posts have a permanence and potential audience that casual conversations around the water cooler at work or at an after-hours social gathering do not.”

The Court’s conclusion on the issue is that it is unlikely to be sympathetic to any argument where an expectation to privacy is asserted concerning a comment made on Facebook. Therefore, arguments from employees related to privacy of their online Facebook conversations are unlikely to succeed.

There is likely to be an exception in respect of the private messaging service offered by Facebook. That service is more akin to email and is only visible to select recipients. This will be a question of degree. The rationale that the message could still be onshared to others theoretically would still apply. A large volume of recipients could well lead the Court to consider the message not to be private.

A better option for an advocate for an employee is to challenge the sufficiency of the comment to justify a disciplinary response. The best way to do this is to compare it to the decision of Dickinson v Chief Executive of Ministry of Social Development. In that matter, the Authority considered Facebook comments that must be viewed as significantly adverse to the employer’s reputation. In Dickinson, the offending comments concerned, derogatory remarks about public servants as “slothful and exploitative”. Ms Dickinson described that, as a government employee, she was a “very expensive paperweight”. She continued that she was “highly competent in the art of time wastage, blame shifting and stationary [sic] theft”. The Authority held that the Facebook comments alone would not have justified dismissal, and only when viewed in combination with the employee’s earlier suspension related to an arson charge was the matter serious enough to justify dismissal.

Accordingly, it is likely that a significant number of disciplinary matters will involve comments at the level of the Dickinson decision or less serious. The case can be used to argue that a warning rather than dismissal is the appropriate response.

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