Most Read Contributor in New Zealand, February 2017
Some principles must seem so obvious as to go without saying.
Yet, the recent determination of the Employment Relations Authority
in Blylevens v Kidicorp Limited suggests that perhaps even
obvious principles benefit from being re-stated from time to
The background to this case was an employment relationship
dispute between Kidicorp, the owner of a child care centre, and its
employee and manager, Ms Blylevens. During the course of the
dispute, Ms Blylevens sought the assistance of an employment
advocate, Rachel Rolston. The initial employment relationship
dispute was overtaken when Ms Rolston posted several statements on
her business Facebook page which contained derogatory comments
about Kidicorp. Ms Blylevens proceeded to "like" Ms
Rolston's posts and commented on one of the posts. This not
only linked herself to the post, but also expanded the audience of
the post. Kidicorp became aware of Ms Blylevens' actions in
liking and commenting on the posts, commenced disciplinary action
against Ms Blylevens in reliance on its Media Relations and Social
Networking Policy (Policy) and ultimately
dismissed her for serious misconduct.
The Employment Relations Authority (Authority)
noted that Ms Blylevens was aware of Kidicorp's Policy, which
prohibited employees from making unauthorised statements or
publishing material commenting on any aspect of Kidicorp's
operations. The policy also prevented employees from posting any
information that could bring Kidicorp into disrepute or which could
damage, impair or undermine the reputation of Kidicorp or its
employees. The Authority held that although Ms Blylevens conduct
occurred outside of work hours there was a sufficient causal
connection between her conduct and her employment for Kidicorp to
conclude that serious misconduct had occurred. The Authority also
held that there was also a close nexus between the content of the
posts which Ms Blylevens "liked" (and commented on) and
her employment. Finally, the Authority found that Ms Blylevens'
actions had the potential to adversely impact Kidicorp, its staff
and clients, and that they were injurious to Kidicorp's
interests. Ultimately, the Authority decided that the decision to
dismiss Ms Blylevens was one available to a fair and reasonable
So while they might seem pretty obvious, this case shows that
not everyone realises the following:
An employment advocate making derogatory social media posts
about a client's employer is unlikely to help their
client's cause; and
An employee who becomes aware of social media posts that make
derogatory comments about their employer are unlikely to endear
themselves to their employer by "liking" the derogatory
post, or by expanding the audience of the post by sharing it with
all of their Facebook friends.
Perhaps less obvious, but just as important, employers would do
well to make sure that they have a social media policy in place and
that they have made their employees aware of it. It may just prove
useful if one of their employees forgets the more obvious
principles outlined above.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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