Geoff Bevan

September 2014 . . . A childcare centre manager was justifiably dismissed after liking derogatory comments about her employer on Facebook.

Rachel Blylevens was being investigated by Kidicorp, after eight of Blylevens’ eleven staff complained about her.  Blylevens went on sick leave and engaged an employment advocate to help her.

Unfortunately, Blylevens advocate (Rachel Rolston) made two posts on Rolston’s business web page.  Those posts were derogatory of Kidicorp and also disclosed confidential information about Kidicorp’s investigation into Blyleven’s conduct.

Blylevens liked both of the posts, and commented on one of them, calling the post “interesting”.  Ms Blyleven’s Facebook profile clearly identified her as a Kidicorp employee, and her Facebook friends included centre staff, and parents.

What the employer did right

Kidicorp’s approach to the situation was text book, and put it in an excellent position to successfully defend the dismissal.  In particular:

• The company had good employment agreements in place, which amongst other things required its employees to be respectful, act in good faith, and not discuss the company’s affairs in a demeaning or derogatory manner.
• It was also helpful that Kidicorp had a media and social networking policy which told employees that they might be disciplined for “inappropriate” use of social media.
• After the posts were made, the company conducted an extremely thorough investigation, considering all of the relevant circumstances and giving the employee the chance to comment before it made any decision.
• Importantly, that process involved giving Ms Blylevens a chance to acknowledge that she had done wrong.

On the other hand…

By contrast, Ms Blylevens seemingly did nothing to help her own situation.  As well as liking the posts in the first place, she:

• Didn’t show any remorse or acknowledgement;
• Claimed she was being punished for her advocate’s actions, which had nothing to do with her;
• Displayed an “arrogant” attitude when asked by Kidicorp to take the comment down; and
• Claimed that, by “liking” the post, she hadn’t been endorsing it.

Result

The Employment Relations Authority had no problems finding that Ms Blyleven’s behaviour meant that her dismissal was reasonable and lawful.  The Authority said it was open for Kidicorp to include that her “like” and her comment was intended to be a public endorsement of Ms Rolston’s derogatory views.

Comment

This case is a warning for employees - Courts have previously recognised that comments and actions on Facebook have a potentially “limitless” audience.  Employees should never assume that the comments they make are private, or will be limited to their friends.

However the result also demonstrates to employers how difficult it is to dismiss an employee for this type of action.  As well as having strong agreements and policies, Kidicorp’s careful process (and the employee’s refusal to acknowledge wrongdoing) were key factors in securing a successful result.

The case also reminds employment advocates and representatives to ensure their actions are objective, measured and appropriate.  The Authority’s determination makes it plain that Ms Blyleven’s advocate had not helped the situation at all, and in fact her actions had arguably contributed significantly to her client’s eventual dismissal.

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