What happens if an employee's conduct on social media goes against your business values?

Social media has become a big part of our everyday lives. We use social media to access news, communicate, network and stay connected with family and friends.  It’s also a platform where people can express their opinions and support for numerous topics, including controversial ones.  

In the hyper political world, we live in today, social media can provide an endless audience. Facebook, LinkedIn and Twitter can all be used for constructive debate and education, as well as for making defamatory or harmful comments, or spreading misinformation. So, what can you do as an employer, if your employee’s conduct on social media goes against your business’s values?

The legal framework

Every person has the right to freedom of expression in New Zealand, as preserved in the New Zealand Bill of Rights Act 1990.  An employee’s private life is just that – private. That is the starting point.  But there does come a point when an employee’s off-duty conduct can cross the line.  When that line is crossed, an employer may be justified in taking disciplinary action against their employee.

Employees owe an underlying duty of fidelity to their employer.  This means they must act in the best interests of the business and this duty is implied in all employment agreements.

When can an employer take action?

For disciplinary action to be lawful, there must be a clear relationship between the employee’s conduct and their employment. In other words, the employee’s unsatisfactory behaviour on social media needs to be fundamentally connected to their job for it to amount to a breach of the duty of fidelity.

To determine whether there is such a connection, employers should consider the following questions:

  • could the employee’s conduct damage the business?
  • does the conduct impact on other employees?
  • is the employee’s conduct incompatible with the proper discharge of their duties and responsibilities?
  • does the conduct impair the employee’s ability to carry out their duties?
  • has the employee’s conduct undermined the employer’s necessary trust and confidence in them?

If the answer to any of these questions is ‘yes’, then it is likely that disciplinary action could be justifiable.  

As with any action an employer takes, the question will always be: were the employer’s actions and how it acted the actions that a fair and reasonable employer could take in the circumstances? 

Take this as an example

The Employment Relations Authority (“ERA”) in Blylevens v Kidicorp Limited [2014] NZERA 591 found that an employer was justified in dismissing its employee for liking and commenting on defamatory posts about it on Facebook.  A third party posted saying that childcare provider Kidicorp, was a “corporate bully” and used “tampered with or totally fake documents” to “remove unwanted staff” through “allegations of bullying”.  The employee liked these posts and commented saying “as a parent looking at childcare it’s good to be informed”.  The ERA held that by merely liking and commenting, the employee was enforcing and sharing disparaging views of their employer, and this was a clear breach of the duty of fidelity.  The employer’s decision to dismiss the employee was found to be justified in the circumstances.

Our advice to you

We recommend that employers act proactively by setting clear expectations as to how employees should conduct themselves on social media.  This can be done by including express provisions in individual employment agreements coupled with a social media policy. 

Employment & HR