Yes - conduct outside of the workplace can justify dismissal.
That includes posting comments and video footage on Facebook if it is found to be incompatible with the proper discharge of the employee’s duties and could undermine an employer’s trust and confidence in that employee.
Irrespective of the employee’s behaviour though, the employer must follow fair process.
On what grounds?
However, to justify dismissal there has to be a sufficient connection between the conduct on Facebook and the employment relationship.
The Court has held that it is not so much where the conduct occurs but rather its impact, or potential impact, on the employer’s business including:
- Damaging the business’ reputation.
- Conduct that is incompatible with employee’s proper carrying out of their duties.
- Conduct which impacts on the employer’s obligations to its other employees.
- For any other reason that undermines the employer’s trust and confidence in its employee.
When ‘private’ isn’t really private
The court has also found that Facebook posts, even those supposedly protected by a privacy setting, may not be regarded as protected communications beyond the reach of employment processes.
In one case, Hook v Stream Group (NZ) Pty Ltd, the Judge said: “After all, how private is a written conversation initiated over the internet with 200 ‘friends’, who can pass the information on to a limitless audience?”
