There are many famous sayings about the written word: 'the pen is mightier than the sword' and 'a picture is worth a thousand words' to name but a few.

As the author of an on-line blog, and with writing making up a significant aspect of what I do on a daily basis, it's perhaps not surprising that I believe that the written word can have a significant impact - and often a more far reaching or greater impact than was intended and foreseen.

Indeed, sometimes I think things can appear a thousand times worse when they are written down (than for example, when they are said). Not to mention the fact that it may be easier to forget about (or even deny) something that is said, than something that is written. With writing you have a permanent record if not reminder.

Sometimes things need to be written down, and the law is a profession known for its files and file notes. But that aside, there are some things that perhaps just shouldn't be written...

I've written before about the need to 'face up to Facebook'... and now we have a decision of the Employment Relations Authority to shed more light on the issue of an employee's ability to comment on Facebook about their colleagues and/or their employer.

Alana Adams was employed by the Wellington Free Ambulance Service Incorporated. She was dismissed for serious misconduct following incidents with a co-worker on a shift, and subsequently on Facebook. Ms Adams claimed the dismissal was unjustified and sought remedies, including reinstatement.

In terms of establishing the serious misconduct, one of Ms Adams' colleagues made a formal complaint to management about her alleged treatment of him. The complaint related to the way in which she had spoken to him (about the taking of breaks, and about his work and whether he had properly coded a job).

It also related to abusive messages he alleged he had received from Ms Adams (calling him a prick, a dick and telling him that he needed to learn his place and that if he spoke to her that way again, she would tell him where to go). The messages were posted on Facebook.

During the investigation, Ms Adams attempted to explain that her friendship with her colleague had broken down over a private matter. She denied making comments in the nature of talking down to him but did not deny the comments made on Facebook, though she stated that she did not believe that the Facebook comments fell within the province of her employer.

Wellington Free Ambulance undertook further investigations. This resulted in one staff member agreeing with Ms Adams' version of events, and three others agreeing with her colleague.

Ms Adams' representatives argued that given the time it took to investigate the matters, and as Ms Adams remained in the workplace, it could not be conduct considered to be serious misconduct, and not sufficient to warrant the termination of her employment. Despite this, the organisation determined that termination was appropriate.

There were a number of issues with the process followed by Wellington Free Ambulance, including relying on information that was not disclosed to Ms Adams in its decision making process. Those issues exposed the organisation to risk in respect of its decision making.

In terms of her claim for reinstatement subsequent to her dismissal, more than ten employees, including some who worked on the same work shift as Ms Adams, raised concerns about the prospect of her being reinstated and provided affidavits opposing such an order. It was also relevant that after her employment ended, Ms Adams had an unpleasant exchange with a, by that stage, former co-worker. The Authority noted: This was not a wise response by Ms Adams.

Ultimately the Authority held that how Wellington Free Ambulance acted was not how a fair and reasonable employer would have acted in all the circumstances at the time (in relation to the process it followed). Unfortunately for Wellington Free Ambulance, this was a situation in which process and substance were intertwined.

In particular, the Authority found that in making its decision to dismiss, the organisation relied on other incidents to show a pattern, or to satisfy itself that the misconduct may well repeated. The Authority said that it could not be determined what may or may not have been the appropriate penalty had the material been disclosed and had Ms Adams been able to respond.

In terms of the Facebook comments, the Authority noted: it is impossible to turn the clock back and determine that it was open to Wellington Free Ambulance, on substantive grounds, to dismiss Ms Adams for what were clearly inappropriate behaviours, particularly given the Facebook exchange occurred well after the working shift was over.

What this means in practice for other employers is that it remains less than clear how the Authority will treat comments by an employee on a Facebook site, as evidence of serious misconduct.

It does appear that the Authority will give weight to when the comments were made and it can be inferred from this decision, that an employee may have more freedom in relation to comments made outside of work time. Whether that conduct is still capable of amounting to serious misconduct, will be determined on a case by case basis.

In good news for Wellington Free Ambulance, it successfully defended Ms Adams' application for reinstatement. Reinstatement is the primary remedy provided for by law, where it is practicable. In this case, the Authority held that the concept of 'practicability' required it to be satisfied that Ms Adams would be a harmonious and effective member of the emergency communications workforce, if reinstated.

The Authority took into account the fact that Ms Adams failed to understand that her interactions on Facebook were a legitimate area of concern for her employer, and failed to assure the Authority that she would not repeat her behaviour (including questioning decisions of supervisors) if reinstated.

If nothing else, this case is a lesson in learning a lesson. If Ms Adams had been prepared to accept that there were issues with her conduct, and to assure the Authority that such conduct would not be repeated and that she appreciated that it was inappropriate, she may have been reinstated.

As it is, taking into account her contribution, one cannot help but feel her victory was pyrrhic at best (reinstatement was declined and her remedies were reduced effectively by 60%). Perhaps Ms Adams didn't need to face up to free speech on Facebook, but to her actions...



Bridget Smith

Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts