Right to comment comes with a warning

Southland Times Work to Rule employment law columnist Mary-Jane Thomas
Southland Times Work to Rule employment law columnist Mary-Jane Thomas

I have always believed that employees have the right to have an opinion about their boss.

I have in the past defended employees who have been brought to task for making negative comments about their manager to another employee. In my view employment law does not remove your right to say in a confidential or closed setting that in your view your boss is unreasonable, vindictive or worse.

But there is a huge difference between that conversation and placing similar comments on Facebook. People cannot expect to get away with bagging their employer or their manager on Facebook. If they do in my opinion they deserve what they get.

Mr H worked for a company and in the first year of his employment he got a written warning. He was later issued with a final written warning in relation to similar issues. Shortly after receiving the final written warning Mr H advised he was resigning within two weeks. Mr H contended that he was constructively dismissed, filed in the Employment Relations Authority (ERA) and his claim was dismissed. He challenged the ERA's decision in the Employment Court.

A constructive dismissal arises where an employee has no choice but to resign - including in circumstances in which they are presented with the option of resigning or being dismissed or where a breach of duty by the employer has caused the employee to resign.

Mr H argued that the company conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence and his only option was to resign. He said that his resignation arose out of the actions of the company in relation to the way the warnings were given and the events which followed.

The employer said that Mr H resigned of his own free will and not as a result of any breach of legal duty by it.

Now Mr H was employed by a New Zealand company that merged with an Australian company. Mr H did not much like a number of initiatives undertaken following the merger and sent emails to other staff including references to members of the Australian management team as "dumb aussies".

After he resigned his employer searched Facebook. On a post before his resignation he said:

Mr H: WELP, work found out I am looking for another job today, and I may get in trouble for it. Thoughts?

On August 18 the following exchanges were posted:

Mr H: Going to quit my job tomorrow, while on annual leave. Probably should have timed that better.

Reply: Is your boss on Facebook?

Answer Mr H: Na. If he was, I'd tell him he is a dickhead.

Reply: That's putting it awfully nicely I hope he gets mauled by a pack of rabid dingos.

In the present case the employer submitted to the Employment Court that the Facebook entries went to credibility, undermined the plaintiff's version of events and that they tended to support the contention that Mr H resigned of his own free will. The Employment Court accepted that the Facebook comments were admissible evidence and rejected they were private communications and stated:

"It is well established that conduct occurring outside the workplace may give rise to disciplinary action, and Facebook posts, even those ostensibly protected by a privacy setting, may not be regarded as protected communications beyond the reach of employment processes.

After all, how private is a written conversation initiated over the internet with 200 "friends" who can pass the information on to a limitless audience?

This case should be a warning to employees that they should not feel that a court will ignore comments made by them on Facebook. Indeed this case supports exactly the opposite conclusion . If an employee is bringing a claim to talk about how terrible his or her employer is or that he only resigned because of what the employer did anything that suggests the contrary on Facebook can and likely will be raised by an employer to defend that claim.

Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles. Email contact: Mary-Jane.Thomas@prlaw.co.nz

The Southland Times