All in a day's work

Employment lawyer Bridget Smith blogs on workplace and HR issues. Bridget is a senior associate at law firm Minter Ellison Rudd Watts.

Facing up to Facebook - the realities of internet usage in the workplace

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Facebook has hit the news at least twice this week.

These stories serve as clear reminders, to employers and employees, of the perils of internet and email usage in the workplace.

Now I'm not talking about John Key 'de-friending' people, which hit the news last Monday.

No, this week's topic is about the ability to use Facebook as a mechanism for terminating employment, and a reminder to employees, and indeed potential employees, that big brother may be watching...

Spare a thought for the UK teenager who was notified that she had been sacked from her part-time job in a café, via a message from her Manager on Facebook.

As the story goes, Chelsea was given 10 pounds from the till and sent out to buy biscuits for her co-workers. Chelsea's version of events is that she lost the money and accordingly the company considered that the till was 10 pounds down at the end of the day.

In her manager's message to Chelsea on Facebook she stated:

"I had to tell the owner bout u losin that tenner coz obviously the till was down at the end of day. she wasn't very pleased at all and despite me trying to persuade her otherwise she said I have to let u go. I'm really sorry. If u call in in the week with your uniform i'll sort your wages out. Once again I'm really sorry but it's out of my hands. Elaine xx."

Chelsea's mother is reportedly 'furious' about how her daughter has been treated. I imagine that Elaine's mother is also less than pleased about the mis-spelling in the Facebook message as well!

This leads me to ask the question - could something like this happen in New Zealand?

The answer is, indeed it could. But, would it be a lawful dismissal? The answer is likely to be no. First, there is the absence of any process followed by the employer in making its decision to dismiss, and secondly there is a question about the justification for the decision.

That is, would a fair and reasonable employer have dismissed Chelsea in those circumstances? The answer again is most likely to be no. Given Chelsea wasn't given an opportunity to provide an explanation as to why or how the money went missing, the employer had no way of knowing, prior to making its decision to dismiss, whether there was a reasonable explanation or not.

Giving the employee a chance to explain and respond to any allegations, prior to making any decisions in respect of possible disciplinary consequences, including possible termination of employment, is a vital aspect of both procedural fairness and a substantively justified decision to dismiss.

For most of us, 'de-friending' people from our Facebook accounts, isn't going to hit the newspapers. But employers need to remember, while technology may make many things easier, as Mr Clooney emphasised in Up in the Air, some things do still require personal attention. Not to mention adherence to some form of process...

Would you consider dismissing someone via Facebook?

Have you heard horror stories along these lines?

Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts

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