Remarkably, nearly half of our population, (around 2.3 million people) are Facebook users. Yet until recently, Facebook had not played a large part in employment law disputes. That is starting to change.
The Employment Court recently commented at some length about Facebook in Hook v Stream Group (NZ)
Pty Limited  NZEmpC 188. Mr Hook was (somewhat ironically) an information technology administrator, who resigned after receiving a final written warning. Mr Hook claimed that he had been constructively dismissed. However, after the resignation, his employer had taken screenshots of Mr Hook’s Facebook page (which was in the public domain). Mr Hook’s posts included the following gems:
Mr Hook: “Going to quit my job tomorrow, while on annual leave. Probably should have timed that better.”
Reply: “is your boss on Facebook.”
Mr Hook: “Na. If he was, I’d tell him he is a dick head”.
Although the Facebook evidence was not determinative, the Court found that the posts were admissible evidence and indicated Mr Hook intended to resign of his own free will. He was unsuccessful in his constructive dismissal claim. The Court made the following comments about Facebook in the employment context.
- Conduct occurring outside the workplace may lead to disciplinary action.
- Facebook posts, even those protected by a privacy setting, may not be regarded as protected communications beyond the reach of employment processes.
- Facebook posts can easily be communicated outside of the circle of “friends” and “have a permanence and potential audience that casual conversations round the water cooler at work or at an after-hours social gathering do not.”
- Posts may substantiate a dismissal/disciplinary action or vitiate a claim of constructive dismissal.
A recent Employment Relations Authority case, Kensington v Air New Zealand Limited  NZERA Auckland 332;  NZERA Auckland 384, is another example of the employee’s Facebook posts assisting the employer’s case.
Ms Kensington was dismissed by Air New Zealand for dishonestly taking sick leave to care for her sister who had recently given birth. After the dismissal, Air New Zealand sought copies of Ms Kensington’s Facebook posts and bank records over the sick leave period because it did not accept she was caring for her sister. Ms Kensington objected to having to disclose these materials arguing Air New Zealand did not have any of these materials at the time of the dismissal so they could not be used to justify its actions. While accepting that argument, the Authority still required Ms Kensington to produce the relevant posts and then admitted them as evidence, as Ms Kensington’s honesty was still relevant to the remedies she should receive.
The Authority held Air New Zealand could not, on the evidence it had, have fairly and reasonably dismissed
Ms Kensington for being untruthful. However, it reduced her remedies substantially for contribution by Ms Kensington, relying on the fact that she had remained on the beach taking photos for her Facebook page as she tried to organise the domestic leave, while her sister was allegedly sick and alone.
The moral of these cases is that, although it is tempting to treat Facebook posts as a private chat with your close mates, in reality posts have a wide audience. They can easily get back to an employer and, if they do, privacy arguments are unlikely to justify inappropriate posts or prevent admission of your posts as evidence against you in your employment case. For employers, consider requesting copies of Facebook posts during an employment investigation, if the employee uses Facebook and there could be posts relevant to the matters under investigation.