Mary Breckon, Senior Associate and Alana Harrison, Solicitor at Simpson Grierson, share their insights about social media and how it can jeopardise employment. 
Most people use one or more social media platforms in a personal capacity. Many are aware that their use of social media in a personal capacity can have implications in a work context. A few choose to ignore this, and find themselves facing disciplinary action by their employer.
This article considers the unique characteristics of social media that create risk for employers, the point at which an employee’s “private” conduct becomes public and can jeopardise their employment, and two recent decisions in which employees were dismissed for their online activity.
Unique characteristics of social media
Due to the unique and inherent characteristics of social media (instant communication, widespread use, unlimited audience, virality, ease of dissemination, loss of control) an employee’s conduct on social media can reach wide numbers of people in a very short period of time.
Privacy cannot be guaranteed even if a post is not publicly available in the first instance. For example, even if an employee’s settings are on private or they only share a post with friends and family, that post can be screenshotted, shared or reposted to a limitless audience and, even if the post is not shared further, an initial audience of a couple of hundred friends is still further reaching than ever before.
These unique characteristics have been recognised by the courts. In Hook v Stream Group (NZ) Pty Ltd[1] Judge Inglis noted that:
The reality is that comments made on virtual social networks can readily permeate into real-life networks. Facebook posts also have a permanence and potential audience that casual conversations around the water cooler at work or at an after-hours social gathering do not.
This means that an employee’s activity on social media can create risk for an employer and, in certain circumstances, the employer may take disciplinary action against the employee.
When “private” conduct becomes public
The starting point is that there is a distinction between an individual’s private life (which cannot be controlled by their employer) and their work activities (which an employer can assert control over). But there is also some cross over.
The question is, when does an employee’s “private” conduct become public and have the potential to jeopardise their employment? The art is to strike the right balance between employees’ right to privacy and employers’ right to protect their business and reputation online.
An employee’s use of social media in a personal capacity may become public and affect their employment if:
- the conduct objectively impacts or has the potential to impact adversely on the employer’s business or reputation (for example, loss of existing or potential customers, reduced consumer trust in the employer or difficulty recruiting new employees); and
- there is a clear link between the conduct and employment (for example, wearing work uniform, listing the employer and/or role title on the profile, or where the employee’s employer is public knowledge eg a CEO of a well-known company).
Assuming those requirements are met, employment issues which arise from the use or misuse of social media can amount to a breach of the employee’s good faith obligations, duty of trust and confidence, employment agreement and/or any social media policy. Such breaches can be addressed under the well-established principles of employment law.
Recently, the Employment Relations Authority has considered two cases where employees have been dismissed for their online activity. In the first case, the dismissal was held to be justified but in the second case, it was not.
Turner v Wairarapa District Health Board[2]
A registered nurse was dismissed after an investigation by the Wairarapa District Health Board (DHB) due to what it considered inappropriate material shared on her Facebook page.
Ms Turner had shared posts relating to her anti-vax views, criticism of the government’s actions to protect the community during COVID-19, and religious views were considered by the DHB to be harmful and terminated her employment.
Ms Turner alleged she was unjustifiably dismissed and unjustifiably disadvantaged. She claimed the DHB had no substantive reasons to justify her dismissal given she was expressing her opinions online.
Ms Turner also asserted that the DHB acted in a discriminatory manner and ignored her rights to privacy and freedom of expression of political or religious opinion.
The Authority found that the decision to terminate her employment was both procedurally and substantially fair, and the dismissal was justified. The Authority concluded that Ms Turner’s Facebook posts had the potential to bring the DHB into disrepute if they had been viewed by the wider public and local community.
It held the situation was aggravated as Ms Turner occupied a community based role and she nursed vulnerable patients. Therefore, the Authority found that it was not an unreasonable expectation from the DHB that she desist from making critical and controversial comments on public health matters during a pandemic. The Authority rejected Ms Turner’s argument that her Facebook posts where private when she shared them with up to 200 others.
The Authority also criticised Ms Turner for vigorously justifying her postings during the disciplinary investigation. It was also critical of her for not displaying any insight on the content of her postings and the linkage to her professional obligations as a registered nurse on the opinions that she held. It found her several posts compromised the DHB and Ms Turner’s professional credibility.
Warrington v Bizcom New Zealand Ltd[3]
The Operations Manager at a private hospital run by Bizcom New Zealand Ltd (Bizcom) discovered 67 publicly posted TikTok videos that had been filmed on the business premises during supposed “work time”. Employees who were present in videos but did not post videos received verbal warnings. Employees who filmed and posted videos received written warnings.
Ms Warrington, who worked as a caregiver, featured in 27 videos, including one which showed another colleague and a resident of the hospital. The video had been filmed and posted by the colleague. Only Ms Warrington and that colleague were dismissed, due to privacy concerns about the resident being visible in the video.
The Authority held that Bizcom was unable to point to any contractual obligation that Ms Warrington had breached and had followed a flawed process because it:
- did not sufficiently investigate the allegations against Ms Warrington. Bizcom failed to distinguish between the actions of Ms Warrington and her colleague. Ms Warrington featured in a video that was made, uploaded to TikTok and then deleted by someone else. It also did not properly set out the alleged breaches which impacted her ability to understand what the alleged breaches were;
- did not properly raise its concerns with Ms Warrington — it failed to identify what actions were of concern, explain the employment obligations it believed her alleged actions breached and failed to even show her the video in question;
- did not provide Ms Warrington a reasonable opportunity to respond to its concerns because it never set out its concerns in the first place; and
- did not adequately consider Ms Warrington’s explanations.
The dismissal was unjustified. Ms Warrington was awarded lost remuneration ($4.364.50), holiday pay ($349.16), employer contribution to KiwiSaver ($130.94) and compensation for hurt and humiliation ($12,000).
Mary is a senior associate in the employment law group. She is experienced in all aspects of employment law and health and safety. Her expertise includes advising on all matters concerning employment including, human rights and privacy, disciplinary matters, employment investigations, restructures and performance management. Mary also provides advice on workplace obligations under the Health and Safety at Work Act 2015, officer duties, WorkSafe investigations, and notifiable events. Mary regularly attends mediations and has appeared in the District Court, High Court, Employment Relations Authority, and Employment Court. Mary provides timely, commercial and pragmatic advice on employment law issues to clients in a range of sectors, including health, education, banking and finance, building, engineering and manufacturing, retail, and forestry. Connect with Mary via LinkedIn.
Alana is a solicitor. Connect with Alana via LinkedIn.
[1] Hook v Stream Group (NZ) Pty Ltd [2013] NZEmpC 188.
[2] Turner v Wairarapa District Health Board [2022] NZERA 259.
[3] Warrington v Bizcom New Zealand Ltd [2022] NZERA 357.
