It is important to follow social media policies when investigating misconduct. You can investigate if you suspect a breach of your policy or employment agreement, or if you think your business may have been brought into disrepute.
In recent years, there has been an increase in the number of New Zealand employment issues arising from social media sites.
Several cases at the Employment Relations Authority have found employees justifiably dismissed for their Facebook posts.
Business Reputation
Even self-deprecatory humour can fall foul if it brings an employer into disrepute, as we shall see in the determination Dickinson v Ministry of Social Development.
On her Facebook page, Ms Dickinson described herself as a "very expensive paperweight", "highly competent in the art of time wastage, blame shifting and stationary [sic] theft".
Her employer considered these comments more inflammatory than funny, and she was dismissed for bringing the Ministry into disrepute.
The Employment Relations Authority labelled her Facebook comments "derogatory of the public service" and "disparaging".
While her Facebook comments were insufficient on their own to justify dismissal, the Authority took into account her past behaviour. This included a prior warning for arson - not the best look for a prison reintegration case manager!
This case shows employers can rely on evidence of misconduct on social media, even if the misconduct occurred outside of work.
Sick Leave
Sick leave can also be called into question, when social media shows evidence of a "sickie".
In the case Taiapa v Te Runanga O Turanganui A Kiwa Trust, the Employment Court found Mr Taiapa was justifiably dismissed for misleading his employer.
Mr Taiapa was dismissed after his employer found a photograph of him on Facebook, where he was gesturing a "thumbs up" from the grandstand of a sports championship, while supposedly on sick leave.
Effectively, the employer gave him a "thumbs down" for loss of trust and confidence.
Similarly, employees can be forced to provide evidence of private Facebook profiles by the Employment Relations Authority.
The Authority in Kensington v Air New Zealand Ltd ordered the employee to provide Facebook posts from her day's domestic leave.
The Authority reduced the employee's remedies when Facebook pictures showed she had visited the beach instead of caring for her sick sister.
This case highlights the Authority's ability to order any relevant evidence from social media.
Tips
For best practice in managing use of social media, employers should:
• Prepare policies on social media and technology. Set out clear guidelines about what is acceptable and non-acceptable use of social media and workplace technology.
Clarify the extent that this may be monitored. State potential outcomes of any breaches, such as a disciplinary investigation that could result in dismissal.
• Install firewalls for productivity. Reduce the amount of time that staff spend on social media while at work. Install firewalls that guard specific sites and make it difficult to "blog on the job".
• Be fair and reasonable in your search. Employers may access any staff social media sites that are publically available, or where a manager has been invited to share the site. Follow a fair investigation that is not intrusive - don't befriend staff on Facebook for the purpose of snooping on them!
• Allow staff opportunity to comment. An employer must take reasonable steps to check the accuracy of social media before relying on this information. Always consult with staff before taking disciplinary action.
For more information, attend Julia's webinars on Investigating Misconduct through CCH Learning. Email Julia for assistance in preparing a social media policy: Julia@kiwiboss.co.nz 
