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You’ve probably seen it on Facebook: a friend letting it all out in a post about their frustrations at work, usually followed by an outpouring of support from friends in the comments section.
Sometimes the author of the post will name the employer, or even call them names. But is publicly criticising your boss legal? Could it get the employee dismissed?
This article will look specifically at media posted outside the course of employment, and made on a staff member’s personal device. In particular, we’ll look at the consequences of employees publicly criticising their employer.
Can Employees Be Dismissed For Posting Negative Comments About Their Workplace?
Employees can be dismissed in certain circumstances. In New Zealand, there is no absolute right to freedom of speech.
There is, however, an implied right to freedom of expression under the New Zealand Bill of Rights Act 1990. This right has to be balanced with the obligations that certain employees must show, in particular government employees. As well as this, employees must not bring their employer into disrepute or violate any hate speech laws.
Private Sector Employees
In New Zealand, the Employment Relations Act 2000 provides a framework for dealing with issues related to employees’ conduct, including social media use. If an employee’s social media activity is deemed to have damaged the employer’s reputation, it could potentially lead to disciplinary action, including dismissal.
However, each case is unique and the specific circumstances, including the nature of the comments, the employee’s role, and the employer’s policies, will all be taken into account.
Public Servants
Public servants in New Zealand are also subject to specific codes of conduct. The State Services Commission provides guidance on the use of social media, which includes the expectation that public servants will act with a spirit of service, integrity, and respect, even in their personal social media use.
Public servants who breach these standards, including through their social media activity, may face disciplinary action, including dismissal.
Can An Employee Be Dismissed For Any Other Types Of Posts?
Yes, they can. Employees can and have been dismissed for posts that don’t criticise their employer, but are otherwise offensive.
Some posts may be violent in their nature and directed at a person, or incite hatred against a person or group because of their race, ethnicity, gender, sexual orientation, religion, disability, or other factor.
So, can you fire someone even if it’s not political or about work, but because they’ve demonstrated that they’re a bit of an unsavoury character? Understandably, even if the post is not connected to work, the person is, and this can bring your business into disrepute.
In some cases, a post may violate the law. New Zealand has legislation aimed at making hate speech illegal. For example, the Human Rights Act 1993 makes it unlawful to incite hostility or ill-will against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons. A ‘public act’ includes social media use.
What Is A Social Media Policy?
A Social Media Policy is an internal workplace policy that sets out what employees can and can’t do when it comes to how they use social media.
This is particularly important for how employees talk about their boss and other staff. While employees are able to freely express themselves online, many workplaces may wish to draw a line when it comes to how they speak about the business.
Why It’s Important To Have A Social Media Policy
Social media should be broader than just Facebook and Twitter. Having a policy will firstly make clear what you mean by social media, and then clarify what conduct is acceptable.
It’s a good idea to incorporate your Social Media Policy and rules around social media use in your onboarding process, so your staff is aware of expected conduct around social media use from the outset.
It is also important to sensitively balance the rights of your employees to use social media to express themselves with the need to protect your business’ reputation. This will be different for private companies than it will be for public servants.
What Is The Purpose Of A Social Media Policy?
A Social Media policy helps regulate the conduct of employees when it comes to their use of social media with respect to work affairs.
In other words, it should protect the business and its reputation by monitoring and regulating how employees talk about work affairs on personal social media.
What Should A Social Media Policy Include?
A Social Media Policy may look different for each business, as it depends on how much you want to regulate and monitor employee activity. It could also mean striking a balance between this kind of regulation and maintaining a healthy business culture that respects employee freedom.
Generally, however, a Social Media Policy should cover matters such as who can use the business’ social media platforms, how employees talk about work affairs on their personal social media and regulate any content they may upload in relation to other employees.
You may also cover the matter of whether employees are able to use social media during work hours or using business equipment. It all depends on the relationship you want to maintain with your staff.
In Summary
Employers may have a right to dismiss staff who make posts on social media, even if anonymously, and even if it’s done on their own device outside of work hours.
Some common reasons to dismiss employees based on social media use include breaching a social media policy or code of conduct, breaking a law through inciting hate speech, bringing an employer into disrepute or risking impartiality.
Employees might retaliate by lodging a claim with the Employment Relations Authority for unjustified dismissal if it is seen as too harsh or unreasonable. We strongly recommend you seek legal advice before deciding to terminate a staff member’s employment.
Feel free to reach out to Sprintlaw’s expert employment team on 0800 002 184 or [email protected].
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