When employers are faced with this question, it is not only the employment jurisdiction that you have to consider when dealing with a disciplinary matter, but also the jurisdiction of the Human Rights Commission. These matters can include claims of disadvantage, unjustified dismissal and can even address conduct that occurs subsequent to the employment relationship ending.
It is becoming increasingly evident that awards for a successful claimant in the Human Rights Tribunal are far larger than those awarded in the Employment Relations Authority and Employment Court. Given these larger awards to successful claimants in the Human Rights Tribunal, this legal avenue may well become more popular than progressing a claim through the employment jurisdiction.
Obviously for an employee to progress a claim through the Human Rights Tribunal, it must relate to one of the prohibited grounds for discrimination. Included in this jurisdiction is the Privacy Commission which addresses claims of privacy breaches.
The recent and highly publicised example of this is the Human Rights Tribunal decision of Hammond v NZ Credit Union Baywide (“Hammond”). In this case, an ex-employee of Credit Union Baywide, Ms Hammond, baked a cake for a friend who had also recently resigned from NZCU Baywide and iced the cake with the wording “..NZCU F*** You…”. Ms Hammond then had a dinner party with ten ‘close’ friends, five of which were still existing employees of NZCU Baywide.
A photo of the cake was posted to her Facebook page. Her former employer found out about this and the decision states that an existing employee was made to disclose the picture to the former employer, who then sent it to multiple recruitment companies warning them not to employ Ms Hammond.
In this particular case, given Ms Hammond was no longer employed by the company,
an employment relationship no longer existed, which is the likely reason Ms Hammond chose to progress a claim for breach of privacy through the alternative jurisdiction rather than the Employment Relations Authority. A claimant can legally select only one path to take, either the Human Rights Tribunal or the Employment Relations Authority.
The Tribunal held in favour of Ms Hammond and awarded $98,000 for the “severe humiliation, severe loss of dignity and severe injury to feelings inflicted on her”. A further $70,000 was awarded for legal costs and the potential loss of income as a consequence of the breach.
While these sorts of decisions are a clear message that the Tribunal will award significant amounts should an employer be unsuccessful defending a claim, it also serves to assist with understanding the thinking around privacy and conduct involving social media.
In this case, for Ms Hammond to be successful, she had to establish in the first instance, that her Facebook picture was private. While the general trend in the Authority is towards acceptance that placing anything on a social media site can never truly be private, this case sends a clear message that the argument around privacy on social media still holds some weight. It is evident that the breach of privacy related to the distribution of the photo to agencies however if that photo had been deemed in the public domain, and not private, then a breach may well not have been found.
The relevance of this in the employment jurisdiction may well lie in the realm of ownership. The majority of personal grievances relating to unjustified dismissals are about the discovery of Facebook usage at work and whether comments on Facebook can harm the business and/or whether an employer can read the Facebook page of a staff member at work.
While it has been established that comments on Facebook (that reasonably identify the employer with the potential to cause harm to reputation) can justify disciplinary action, it is important to consider how an employer might become aware or get a copy of that Facebook information.
If the employer owns the computer, pays the internet connection and expects the employee to avoid personal internet use during work, then can an employer lawfully read the contents of a Facebook page discovered on a work computer? Does it matter whether the usage occurred at work or at home?
First and foremost, to protect your business, clearly expressed computer policies and procedures are absolutely essential. A good computer/social media policy will always strengthen an employer’s position should an employment relationship become compromised by something occurring on social media.
If you’ve experienced problems in your workplace, you are not alone. Examples that we have assisted with include many examples of an employer logging into a work computer and discovering an open Facebook page of an employee. On that page, the employer might see a conversation about the workplace and comments to a friend about the employer that severely harm the trust and confidence in that employee to be loyal to their employer. It might also involve pictures inconsistent with an employee’s notification that they were sick.
Having good policies in place reminding staff that all computer use is viewable by the employer assists when wanting to use what you’ve discovered in a disciplinary process. In our opinion, if you have clear and thorough policies in place and have actively pointed out what those policies are, then it is likely that you are legally entitled to read the screen and rely on it during disciplinary action.
But what about when you turn on the computer and you see that a Facebook account is there with a saved password? In order to read anything you would have to click ‘log in’. Or, like the previously mentioned case, you ask another employee (who is a friend on Facebook) to provide it and they don’t feel comfortable doing that? Our advice is that what you can do, differs greatly depending on each situation.
In Product Placement 2011 Ltd v Cockburn, the employer opened a returned work laptop and Facebook was left open but minimised. No password was necessary and the employer found derogatory comments about the employer. The Authority considered the employer was entitled to consider this a breach of fidelity and good faith and the dismissal was justified. In deciding this, it was also held that a breach of privacy did not occur.
In Hook v Steam Group (NZ) Pty Ltd, an employee behaved badly during a merger of the business. At the time of disciplinary action, the employee resigned and subsequent to the resignation the employer saw derogatory comments on Facebook including the comment that the employee hoped his boss would get mauled by a pack of rabid dingos. The Employment Court commented on the issue of Facebook and whether it could be lawfully claimed as private information. The employer gave evidence that he had undertaken a search of Facebook and the ex-employee, Mr Hook’s page was in the public domain and not protected by privacy settings. At paragraph  of the decision, the Court states that…
”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…”.
At paragraph  the Court goes on to say that:
“.. Judicial notice has been taken of the potentially far reach of Facebook posts…”
in Senior v Police  NZFLR 356 High Court and albeit in the context of criminal proceedings involving alleged breach of a protection order. There the High Court observed that:
“The Court takes judicial notice that persons use of Facebook are very aware that the contents of Facebook are often communicated to persons beyond the ‘friends’ who use Facebook. When information is put on a Facebook page, to which hundreds of people have access, the persons putting the information on the page know that the information will likely extend way beyond the ‘defined’ class of ‘friends….”
The Court refers to an Australian decision at paragraph  where it states that the Commissioner of Fair Work Commission in Fitzgerald v Smith t/a Escape Hair design  FWA 7358 at  that:
“It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences”.
In summary, it appears that our higher Courts, both in New Zealand and in Australia
Update are acknowledging that it may not be straightforward to claim a right to privacy when dealing with information placed on social media sites. Interestingly this is contrasted with the Human Rights Tribunal decision where it was held that taking the photos from the page was a clear breach of privacy.
It may well be that the employer’s actions in Hammond in relation to pressuring another employee to provide the photo distinguishes it from other cases involving privacy and social media.
As more cases are determined, the clearer the law will become regarding whether or not, information on Facebook (sourced by an employer) is in fact a breach of privacy, or not.
It is reasonably safe to say that relying on the need for passwords and/or failure to have clear policies in place will create sufficient litigation risk. It is always advised that if in such a situation, you seek advice on the best approach given the circumstances.
One alternative approach worth considering if a personal grievance reaches the stage
of an Authority hearing might be to instead advise the Authority of the potential
existence of information on a Facebook page and shift the onus on the ex-employee
to establish their case by providing information the employer cannot safely use
as evidence due to privacy issues.
An example being an interlocutory decision of the Employment Relations Authority in Kensington v Air New Zealand Ltd  NZERA Auckland 332 whereby the Authority ordered the applicant employee to provide her bank accounts and Facebook pages of particular dates to the Authority for consideration. This case related to an employer taking disciplinary action against an employee for alleged misuse of sick leave. The employer was unable to access Facebook or her bank account for privacy reasons and password protection but was aware that evidence existed that would help establish the misuse of sick leave.
This is currently under challenge in the Employment Court but provides for useful
contemplation around issues involving privacy and social media.