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Disclaimer: Educational purposes only. Not legal advice. Consult a qualified NZ legal practitioner for your specific circumstances.

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employment

Social media policies: Firing over a Facebook post

Key Takeaway

Dismissal in New Zealand for social media posts must be justified, involving both a fair process and a reasonable decision. Employers often use social media policies to set clear expectations. Employees can raise a personal grievance if they believe their dismissal was unjustified, relying on protections under the Employment Relations Act 2000.

Social Media Posts and Employment Dismissal in New Zealand

In New Zealand, the use of social media by employees, and the potential for these interactions to lead to dismissal, is governed by the principles of employment law, primarily the Employment Relations Act 2000 (ERA). Employers can dismiss an employee for misconduct, including that which occurs on social media, but such dismissals must meet strict criteria of justification and fairness.

Justification for Dismissal

Under New Zealand law, any dismissal must be justified. This means an employer's actions must be what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred [Source: Employment Relations Act 2000, s 103A(2)]. The Employment Relations Authority (ERA) and Employment Court assess justification based on two key elements:

  1. Procedural Fairness: The employer must follow a fair process. This typically involves informing the employee of the allegations against them, providing them with all relevant information, giving them a genuine opportunity to respond and explain their actions, and considering their response before making a decision [Source: Employment Relations Act 2000, s 103A(2)(a)].
  2. Substantive Justification: The employer must have a reasonable basis for the dismissal. This means the employer's decision to dismiss must be one that a fair and reasonable employer could have made, given the facts of the case [Source: Employment Relations Act 2000, s 103A(2)(b)]. Social media posts that constitute misconduct (serious inappropriate behaviour) or breach employment obligations can form the substantive basis for dismissal.

The Role of Social Media Policies

Many employers implement social media policies to set clear expectations for employees regarding their online conduct. These policies often cover:

  • Bringing the employer into disrepute: Posts that damage the employer's reputation or brand.
  • Confidential information: Sharing sensitive business information.
  • Harassment or bullying: Engaging in inappropriate conduct towards colleagues, clients, or the employer online.
  • Discrimination: Posts that are discriminatory based on grounds protected by the Human Rights Act 1993, such as race, gender, or religion [Source: Human Rights Act 1993, s 21].
  • Conflicts of interest: Promoting competing businesses or activities.

While a social media policy itself is not legislation, its existence and the employee's awareness of it are crucial when an employer seeks to justify a dismissal. A clear, well-communicated policy helps establish what conduct is unacceptable, making it more likely that an employer's response to a breach will be considered fair and reasonable [Source: Employment Relations Act 2000, s 103A(2)]. However, even without a specific policy, employees have an implied duty of fidelity and good faith to their employer, meaning they must not act in a way that is contrary to their employer's interests [Source: Employment Relations Act 2000, s 4].

Employee Rights and Obligations

Freedom of Expression: Employees in New Zealand have the right to freedom of expression [Source: New Zealand Bill of Rights Act 1990, s 14]. However, this right is not absolute, especially in the employment context. An employer can place reasonable restrictions on an employee's expression if it genuinely impacts the employment relationship, brings the employer into disrepute, or breaches other employment obligations. The courts balance the employee's right to express themselves against the employer's legitimate business interests and the employee's duties under their employment agreement.

Good Faith: Both employers and employees have statutory obligations to deal with each other in good faith [Source: Employment Relations Act 2000, s 4]. For employees, this includes not acting in a way that deliberately undermines the employment relationship or the employer's business. For employers, it means acting transparently and fairly in any disciplinary process.

Personal Grievances

If an employee believes they have been unjustifiably dismissed, they can raise a personal grievance [Source: Employment Relations Act 2000, s 103(1)(a)]. A personal grievance is a complaint an employee can make to their employer regarding an action or inaction that negatively affects them, such as an unjustified dismissal. The employee generally has 90 days from the date the action occurred or came to their notice to raise a personal grievance [Source: Employment Relations Act 2000, s 114].

The process for resolving a personal grievance typically involves:

  1. Direct discussion with the employer.
  2. Mediation services provided by the Ministry of Business, Innovation and Employment (MBIE) [Source: Employment Relations Act 2000, s 144].
  3. Referral to the Employment Relations Authority for investigation and determination if mediation is unsuccessful [Source: Employment Relations Act 2000, Part 9].

Privacy Considerations

When an employer investigates social media posts, the Privacy Act 2020 may be relevant. The Act sets out principles for how organisations collect, use, store, and disclose personal information [Source: Privacy Act 2020, Schedule 1]. While public social media posts may be considered publicly available, an employer's monitoring or collection of private social media data must comply with these principles, such as ensuring data collection is for a lawful purpose and not unduly intrusive [Source: Privacy Act 2020, Principle 1, Principle 4].

When to Seek Independent Legal Advice

Individuals seeking to understand their specific rights and obligations regarding social media in employment, or those facing a potential or actual dismissal, are strongly encouraged to seek independent legal advice. Information about employment law is available through official government agencies, and free advice can be obtained from organisations like Community Law Centres (https://communitylaw.org.nz/).

Key Resources