What do these cases have in common?
- An employee in Canada started a personal blog about running. The blog was available to anyone with access to the internet. The employee used her real name and alluded to her employer. She commented about her managers and colleagues in unflattering terms, referring to her supervisor as 'Nurse Ratched' and her workplace as a lunatic asylum. The court concluded that her dismissal was justified on several grounds including the fact that her colleagues no longer wanted to work with her.
- A Delta flight attendant was dismissed after she started a blog entitled 'Diary of a Flight Attendant' in which she posted what were considered to be 'inappropriate' photos of herself in her Delta uniform. These photos showed her relaxing on a jet on the ground in between flights. One photo depicted her leaning over her seat with a patch of her brassiere showing. The flight attendant claimed sex discrimination because Delta allegedly failed to discipline male employees who had posted pictures of themselves in uniform. The case was not heard due to Delta filing for bankruptcy.
- A Warehouse employee was dismissed for writing on her Bebo page that 'work sux' and working until midnight was 'gay like the management'. When the employer read the comments she was fired for serious misconduct. The employer said the online comments had brought The Warehouse into disrepute.
- An employee who worked as a personal carer at an aged care facility created a website accessible by anyone. On her website, the employee published resident information and pictures without resident consent and made inappropriate comments such as referring to her shifts as a 'bitch' and alleging that she was 'blackmailed by management'. She was terminated for breaching the confidentiality agreement and for insubordination. Her dismissal was upheld.
In all these examples, staff were dismissed for writing comments on their personal blog that related to their employment.
Yet in Canada, an employee who was dismissed for a blog that advocated violence and Nazism was reinstated. The court found that the employment relationship was only coincidental to the employee's conduct and that the hateful fantasies and other hostile statements were not directed at the employer. A factor in favour of reinstatement was that the employee had posted an apology on the blog's former site. This decision is isolated to its facts.
In New Zealand, Kaikere Corporation (trading as McDonald's Kaitaia) gained a consent order from one of its employees, by which the employee agreed to refrain from posting on any blog (or in any digital media) information relating to its business or employees. The Employment Relations Authority has also considered derogatory statements made on a blog by an employee against their employer as a mitigating factor against reinstatement.
These days more employees have easy access to email and the internet. It has become a social trend to participate in social networking websites such as Twitter, Facebook, MySpace, Bebo and YouTube. In fact, some Generation X employees might argue that it is 'uncool' to not have a Facebook page.
In the above cases some of the material was posted using the employer's internet access, and during work time, but much was not. The employee used their own computer, outside work hours.
On the flip side, many organisations view the social networking websites as a potential forum to recruit suitable candidates, to network with like minded persons or to send a themed message. For example, the Ministry of Health took innovative steps to keep the public aware of developments in relation to Swine Flu by posting messages on Twitter.
So what can you do?
While the cases in New Zealand have not yet been as exotic as some of those discussed above, employers need to think about what actions they can take to address the use or perhaps 'overuse' of such social networking websites. We make a few recommendations:
- Have a policy - have a company policy on the use of blogging, social networking sites and commercial sites. The policy should deal both with access during work hours using the employer's computer network and with access outside work hours using the employee's own internet access which reflects adversely on the employer. Give examples of reasonable use if you allow usage.
- Don't limit yourself to the internet - decide your position on text messaging and portable devices like iPods and memory sticks.
- Work out your company's position on the extent to which employees can refer to their employer and work colleagues on such sites, and post information or images of them on the internet.
- Copying is the best form of flattering - your company might want to keep a blog or use social networking sites as part of its marketing and networking strategy
- Be fair - if you decide to discipline one employee, make sure you are treating all your employees fairly and in a similar manner subject to the facts of each case.
This issue has yet to be fully tested in New Zealand, but overseas decisions give us some insight as to how to tackle the misuse of social networking sites and blogs. Generally if the conduct damages the employer's reputation or business relationships, or internal employment relationships, then the employee's employment may be in jeopardy. Each case should be dealt with on its own merits.
© DLA Phillips Fox
DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.