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Social Media: Can you be terminated for tweeting or lose your job for liking?

Written by Alison Maelzer and Nina Thomson on November 12th, 2014.

If you think the seemingly inconsequential act of liking a post by someone else on Facebook is outside the scope of your employment relationship, then think again.  In Bylevens v Kidicorp Limited the Employment Relations Authority has found that an employer was justified in dismissing a childcare Centre Manager for serious misconduct owing to her Facebook activities, which included ‘liking’ a post made by someone else. 
 
What was posted?
 
Amidst an investigation into complaints made against Ms Bylevens by some parents and staff at the childcare centre, an altogether separate investigation arose out of Ms Bylevens’ Facebook activities. Ms Rolston, Ms Bylevens’ advocate, decided following the commencement of the initial investigation, to post derogatory comments about Kidicorp on her business Facebook site on two separate occasions.  The posts included information which Ms Rolston believed related to Ms Bylevens’ employment situation.  The posts were found to be derogatory and included describing Kidicorp’s human resources team as “vindictive” and having “fabricated” complaints as well as calling into question the standard of care children at the centre were receiving and calling it a “toxic” environment.
 
The allegations
 
Ms Bylevens was called to a disciplinary meeting and was asked to explain two matters:
 
  1. her liking two Facebook posts by Ms Rolston which made serious and disparaging comments about Kidicorp; and
  2. posting a comment under Ms Rolston’s first post saying “Interesting article pep! As a parent looking at childcare it’s good to be informed”.
In her employment agreement, Ms Bylevens’ duty of fidelity to her employer was clearly set out, which included not discussing the affairs of the company in a demeaning, undermining or derogatory manner, compliance with all policies, dealing with the Company in good faith and conducting her duties in the best interests of the Company. 
 
Kidicorp’s Employee Handbook set out the company’s Media Relations and Social Networking Policy (“the Policy”).  The Policy prevented employees from making unauthorised statements or publishing material commenting on any aspect of Kidicorp’s operations or disclosing sensitive or confidential information relating to Kidicorp.  In addition, the Policy prevented posting any information that could bring Kidicorp into disrepute or which could damage, impair or undermine the reputation of Kidicorp or its employees.  As part of Ms Bylevens role as Centre Manager, she inducted and trained staff on the Policy.  Clearly she could not say that she did not know about the policy.
 
The Dismissal
 
Ms Rolston’s first post divulged that Kidicorp was investigating a Centre Manager which Kidicorp regarded as sensitive and confidential.  This was information that she had no personal knowledge of and was based on unsubstantiated heresay information passed on to her by Ms Bylevens.  Ms Bylevens had then re-published these two posts by liking them and adding a comment, thereby breaching the Policy.  Following her actions, Kidicorp dismissed Ms Bylevens for serious misconduct.  She then raised a personal grievance claim for unjustified dismissal.
 
Authority Determination – Dismissal Justified
 
The Authority analysed the effects of ‘liking’ a post on Facebook or commenting on it, in particular the public nature and further and indeterminate dissemination of the original post.  Not only could anyone who visited Ms Rolston’s business Facebook site see Ms Bylevens name if they hovered on the ‘like’ tab under the first post, but they could also see that Ms Bylevens was a Kidicorp employee by hovering over her name.  By ‘liking’ the two posts and adding a public comment under one of the posts Ms Bylevens had disseminated the posts via her own Facebook page to a new and wider audience which has been recognised as potentially ‘”limitless” by the very nature of Facebook given that she could not control who of her friends would further share the article and so on. Included in Ms Bylevens Facebook friends were ten Kidicorp staff members and three parents with children at the centre.  This amounted to a further breach of the Policy.
 
The Authority considered Ms Bylevens failure to take any action to remove her comment of ‘likes’ appeared to refute her statement that she had not intended to endorse the content of Ms Rolston’s posts and agreed with Kidicorp in finding that there was no remorse and that her explanations for her conduct were unconvincing and unsatisfactory. 
 
Kidicorp concluded that by her public association to the two derogatory posts about Kidicorp, Ms Bylevens had profoundly undermined her ability to operate effectively or credibly as a leader and achieve positive relationships with management, staff or parents, which were essential, core functions of her role.  Further that the wide dissemination of derogatory, inflammatory and factually incorrect comments about Kidicorp seriously compromised the trust and confidence required of someone in Ms Bylevens’ role.  The Authority found that these conclusions, and the decision to dismiss, were open to a fair and reasonable employer to reach in all the circumstances. 
 
Our View
 
What is clear from this decision is that it is not material that the employee was not the author of the original post which conflicted with her duty of fidelity and loyalty to her employer.  Sharing the post through liking it or otherwise appearing to endorse it, was sufficient in these circumstances to find that her behavior was serious enough to justify dismissal. 
 
Businesses should take the opportunity to ensure they have a clear policy in place which outlines their position regarding social media, the internet and publically publishing content online and ensure that staff members are well aware of its content.  With the changing way employees communicate to others it is important you protect your business and its reputation. If you need any advice on your particular circumstances, or whether an employee is in breach of their employment agreement through the use of social media, please give us a call to set up a discussion. 
 
Topics: Employment Law
 
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