The recent outcome of the ERA in Blylevens v Kidicorp Limited suggests that perhaps even obvious principles benefit from being re-stated from time to time.
Some principles must seem so obvious as to go without saying. Yet, the recent determination of the Employment Relations Authority in Blylevens v Kidicorp Limited suggests that perhaps even obvious principles benefit from being re-stated from time to time.
The background to this case was an employment relationship dispute between Kidicorp, the owner of a child care centre, and its employee and manager, Ms Blylevens. During the course of the dispute, Ms Blylevens sought the assistance of an employment advocate, Rachel Rolston. The initial employment relationship dispute was overtaken when Ms Rolston posted several statements on her business Facebook page which contained derogatory comments about Kidicorp. Ms Blylevens proceeded to “like” Ms Rolston’s posts and commented on one of the posts. This not only linked herself to the post, but also expanded the audience of the post. Kidicorp became aware of Ms Blylevens’ actions in liking and commenting on the posts, commenced disciplinary action against Ms Blylevens in reliance on its Media Relations and Social Networking Policy (Policy) and ultimately dismissed her for serious misconduct.
The Employment Relations Authority (Authority) noted that Ms Blylevens was aware of Kidicorp’s Policy, which prohibited employees from making unauthorised statements or publishing material commenting on any aspect of Kidicorp’s operations. The policy also prevented employees from posting any information that could bring Kidicorp into disrepute or which could damage, impair or undermine the reputation of Kidicorp or its employees. The Authority held that although Ms Blylevens conduct occurred outside of work hours there was a sufficient causal connection between her conduct and her employment for Kidicorp to conclude that serious misconduct had occurred. The Authority also held that there was also a close nexus between the content of the posts which Ms Blylevens “liked” (and commented on) and her employment. Finally, the Authority found that Ms Blylevens’ actions had the potential to adversely impact Kidicorp, its staff and clients, and that they were injurious to Kidicorp’s interests. Ultimately, the Authority decided that the decision to dismiss Ms Blylevens was one available to a fair and reasonable employer.
So while they might seem pretty obvious, this case shows that not everyone realises the following:
An employment advocate making derogatory social media posts about a client’s employer is unlikely to help their client’s cause; and
An employee who becomes aware of social media posts that make derogatory comments about their employer are unlikely to endear themselves to their employer by “liking” the derogatory post, or by expanding the audience of the post by sharing it with all of their Facebook friends.
Perhaps less obvious, but just as important, employers would do well to make sure that they have a social media policy in place and that they have made their employees aware of it. It may just prove useful if one of their employees forgets the more obvious principles outlined above.
Please contact our specialist Emplyment Team if you would like any advice regarding social media policies or any other employment issues, we would be happy to assist.
Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.