Facebook insult of boss ends in court

SHANE COWLISHAW
Last updated 05:00 24/12/2013

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Slagging off your boss on Facebook might not be the best career move, with a judge warning there is no such thing as a private conversation on the social network.

The advice comes after an employee, who called his manager a dickhead on Facebook, lost his appeal for constructive dismissal.

Jarrod Hook took his case to the Employment Relations Authority earlier this year, claiming he was pushed into resigning from his job as an IT consultant for the Stream Group.

He was given a written warning after sending disparaging emails about the company's Australian management and being absent from the office without explanation.

After he resigned, the company discovered the offensive posts on his Facebook page. They included a friend hoping that one of Hook's bosses would be "mauled by a pack of rabid dingos".

The authority ruled against Hook, but he appealed to the Employment Court, where he was again unsuccessful.

In her decision, Judge Christina Inglis noted the use of social networks in employment disputes had only arisen sporadically in New Zealand.

But examples of staff using the sites to criticise their employers were becoming more common and carried risks, she said.

"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?"

Comments made on sites such as Facebook could be easily passed into real-life networks and had a potential audience that casual conversations around the water cooler, or at an after-hours social gathering, did not, she said.

Hook said he was expressing legitimate concerns about the company's management, which were shared by others.

His cellphone was taken away over a weekend, and emails from a private account were accessed, he said. "I was treated very badly."

His Facebook comments were "screen-grabbed" after he had already left the Stream Group. "It was never explained why they felt they had the right to do that."

He had since deleted his Facebook account, he said. "One of the reasons was this whole case. I don't miss it - it's quite liberating actually."

Human Resources Institute of New Zealand acting chief executive Brenda Tweedy said she was often surprised at the things people wrote online about their workplaces.

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"It's the same thing with emails, it's just like a postcard, anyone can see it. People think if they tick a box, things are private. Well, they're not.

"Sometimes I see stuff on there and think, 'What an idiot'."

Things had a way of always coming out eventually, so if employees wanted a good reference they should act appropriately, she said.

But equally, employers should treat things written on Facebook with caution before finding out the context behind the posts, and even whether it had been written by the employees themselves.

Employment lawyer Andrew Scott-Howman was not surprised at Judge Inglis' comments and expected plenty of similar cases to appear in the future.

Many employers were well aware of maintaining their public image on social media and had introduced policies that their staff were expected to follow.

It was also becoming accepted in legal proceedings and disputes that access to a person's social media account could be requested as disclosure so it could be considered as evidence.

Some people might be concerned that employers were acting like "Big Brother", but it was unlikely it would get to the point where bosses asked for complete access to workers' Facebook or Twitter pages, he said.

The best advice was for employees to act on social media as they were expected to behave at the work party - have fun but think about what they said.

- Fairfax Media

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