Today’s workforce is more internet-savvy than ever before, and the internet is seen by this generation as an indispensable tool for almost every aspect of working life. In particular, the use of social networking sites like Facebook or MySpace is on the rise. But users of these sites often forget that Big Brother is watching, especially if you are checking your inbox on company time.
Personal use of the internet by employees has in the past been monitored by employers primarily because it reduces the time employees spend working, and therefore their productivity. Most internet and email policies have statement about excessive use of the internet for personal reasons being misconduct, and punishable by disciplinary action.
However, policies often do not cover the situations that are now arising – such as employees publishing personal information or photos about themselves, or worse still, their employer, on their Bebo/Facebook/MySpace page. Many employees also have blogs, where they may write racist, sexist, political, or otherwise objectionable comments that may bring the employer’s business into disrepute by association.
While there have been no cases (yet) in New Zealand dealing specifically with networking sites and blogs, the courts overseas have upheld sackings for derogatory postings. In recent example from Canada, an employee in the Alberta Public Service was dismissed when the employer discovered that her blog contained unflattering comments about number of her co-workers and management, referring to them as “imbeciles”, “idiot savants” and “lunatic-in-charge”. The Canadian arbitration board deciding the case said that while she had right to create personal blogs and hold opinions about colleagues, publicly displaying those can have consequences for the employment relationship. The board said that the dismissal was justified.
While the New Zealand Employment Relations Authority is likely to uphold dismissals for offensive or derogatory postings which are clearly linked to the employer, or bring it into disrepute, there will be many borderline situations. It is therefore crucial to have an internet policy which specifically covers what will happen if the employer discovers negative comment posted on social networking site or blog showing the employee has contravened the employer’s policies.
This was highlighted in the very recent decision of Arthur D Riley & Co v Wood (8 October 2008) where the Employment Court said that insofar as the company policy sets the standards the employer expects of staff using the internet, this is relevant in assessing whether an employee’s dismissal is justified. The Court also noted that what the employer will consider offensive or derogatory will vary. However, the Court stressed that an employer must remain open-minded and rational in their assessment, and cannot impose their own personal values on an employee.
In that case, an employee had been warned twice for forwarding offensive emails in breach of the company’s policy. She was dismissed when she subsequently forwarded (internally and externally) various nude pictures, one of which revealed man’s genitalia. The Court said the dismissal was justified.
A further issue with monitoring employees’ internet use is the Privacy Act 1993. It is important that employers do not breach their employees’ privacy by recording information about websites they visit (such as the length of time an employee spends on Facebook), or by monitoring and reading their emails, without letting them know they may take these actions.
The key things to remember with regards to the Privacy Act are:
• The purpose of collecting the internet and email use information must be connected with function or activity of the organisation (eg, ensuring compliance with the employer’s policy, rather than entertaining an IT technician).
• Employers must make employees aware that the information is being collected, and why.
• Employers must not intrude to an unreasonable extent upon the personal affairs of the individuals concerned – personal emails which do not contravene company policy should not be read other than by the person reviewing the email in the first instance, nor unnecessarily stored.
• The information collected can only be used for the purpose for which it was obtained – namely to ensure compliance with your internet use policy.
The internet has many traps for unwary employers. Clear policies, particularly with regard to the use of blogs and social networking sites, are crucial. Those policies can take into account workplace culture, but must be applied fairly. Moreover, employers who want to monitor their employees must comply with the Privacy Act’s requirements of notification, fair collection of information, and use of that information.
Greg Cain is partner and Jennifer Jones solicitor at Minter Ellison Rudd Watts.
