Max Whitehead: Social media a modern minefield employers must negotiate

Many people discuss their problems in the virtual world. File photo / NZ Herald

It wasn't so long ago that an employee could complain all they liked about their wage, an irritating customer, or Jim, the colleague with bad breath.

Normally this would play out over a few beers with mates, and afterwards everyone would feel much better, and that would be the end of it.

Those days are gone.

Today, many people discuss their problems in the virtual world, on social networking site such as Twitter and Facebook. This technology has changed everything - posts and tweets are in print and unless you are careful with your privacy settings, a seemingly harmless gripe about a boss or colleague can end up being broadcast to a huge audience, creating a world of trouble.

It doesn't surprise me that the Employment Relations Authority and courts, like other jurisdictions around the world, have had a rising number of cases brought before them.

Here are a couple of examples:

*In 2008, McDonald's Kaitaia obtained orders restraining an employee from posting unflattering comments on his blog.

*An employee of the Wellington Free Ambulance Service was sacked after calling a co-worker, on Facebook, "a prick", "a dick", and telling him to "learn his place". In this case the authority found that the dismissal was unjustified. It said the comments were not enough to dismiss, but were relevant to the decision not to reinstate her.

*Last year, NZ Post dismissed a postie, Lyndon Hohaia, for creating a comical blog on his Facebook page about a fictional postman.

In June last year, the Employers and Manufacturers Association (Northern) had this to say: "Employers should take action if employees bad-mouth them on Facebook or other social networking sites."

I agree with them. Employers should take action if they or their employees are being slandered on social networking sites.

However, more often than not, indiscretions happen outside of the workplace making the rules for disciplinary action not so straightforward.

The Court of Appeal's decision in the Smith versus Christchurch Press case offers some useful guidelines to employers when assessing misconduct outside of the workplace.

In this case, Mr Smith invited a female colleague to his home during their lunch hour and made unwanted sexual advances.

She complained to her boss and Smith was sacked.

The Court of Appeal upheld the dismissal. The decision was based on the following categories in which dismissal for misconduct outside the workplace can warrant dismissal. These same guidelines can be applied to misconduct online.

They are:

The employer's business might be damaged in some way.

The conduct might be incompatible with the proper discharge of the employee's duties and cast doubt on their suitability for the job.

The conduct might adversely affect relationships with other employees in the workplace.

The conduct might impact on safety at work, for example if it involved apparent dangerous behaviour.

The conduct might undermine the trust and confidence between employer and employee.

In simple terms, the Court of Appeal said there must be a link between the conduct and the employment.

The employer doesn't have to prove that damage was done to justify sacking an employee, only that the potential for damage is there.

My advice to employers: have a clear policy on internet and email activity so that everyone knows where they stand.

Make it clear to your staff that an inappropriate comment in cyberspace could cost them their job.

Explain that they can measure their comments by asking, would my employer be happy if this appeared as a headline for a news story?

It's common sense really.

Max Whitehead is principal of the Whitehead Group.