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BK, Unite Union, Employment Dismissals & Online Actions...

posted 6 Feb 2011, 12:30 by Jess Maher   [ updated 6 Feb 2011, 13:08 ]



BK worker faces sack over private facebook use

Unite Union is appalled that a union member employed by fast-food company Burger King faces the sack for posting the words “Real jobs don’t underpay and overwork people like BK does” on a private page of Facebook.

 This is not the first case of considerations for the nature of online posts, please see our other write ups, such as http://url.assistnz.com/jameswebster

and  http://faq.assistnz.com/q-a/whydoyouguysthinkthisshouldbeallsoserious




In any research or review, particularly when such topics where traditional & social medias are meeting, any influencing assumptions or misconceptions about our context, conditions or comparisons can have all the difference. We have stated these clearly before considering this legal, contractual and ER issue involving social media.  


Context: New Zealand


The NZ Government have officially started to really enforce & encourage people, launching iGovt early last year. It is now required when that to utilize these supported by govt, digital content strategies & community initiatives all drive towards increasing our lives. But if they had to work,  


A Democracy, Prime Minister and the Governor General who are overarching & in simplistic terms, governed by the Queen. We have a number of overarching pieces of legislature which we are all governed by legislature such as Bill of Rights Act, Human Rights Act & Treaty of Waitangi.




New Zealand in Context: Law


Government: consists of Parliament & Executive - who decide law & policy


Judiciary:  interpret & enforce law- judge, police, customs etc


Social Norms: not in themselves a part of law but its dynamics, impact & influence are fundamentally integrated and entwined. Social Identity Theory, Bystander Apathy, Social Expectations all come into play when it comes to how groups, communities and societies interact. (This Springer series has extensive insights into these phenomum - http://www.spring.org.uk/2011/01/the-psychology-of-persuasion.php)


Possible Relevant Law, Acts & Policies: Judiciary Act, Privacy Act, State Sector Act



New Zealand in Context: Commerce


Need & Trade or Demand & Supply: the fundamental basis of why we have developed commercial enterprises, economies & "work" itself


Economies & Business: revolves around this trade above, but integrated and based on grow, progression and the intersection of money & organisations,


Employment & Human Relations: the organisation of people & work.


Possible Relevant Law, Acts & Policies: Employment Relations Act, Health and Safety in Employment Act, various Acts relating to Contracts, Fair Trading Act



What can be drawn from that for Employers, Collectives, Employees & all Kiwis      


Online behaviours are in general covered by the same laws that relate to behaviour offline - so things like publication of information, entering into contracts or harassment are held to the same standards as if equivalent actions had been taken offline, even though many processes are far easier online, and can be done between many people at the same time. So for instance pressing "accept" on the terms and conditions of a website is legally equivalent to signing a contract with the company owning the website, even though none of the formalities are present that would normally alert someone to the serious nature of entering a contract.


A large proportion of the information people generate online automatically becomes the property of the hosting company, under the terms and conditions they accepted when they signed up to the site. So every user has agreed to terms which amount to a contractual agreement to hand over copyright of all of this content to Facebook automatically upon uploading it, with no remuneration required from Facebook other than the provision of the social networking service they offer.


New Zealand case law has not dealt with issues involving Facebook posts on many occasions, but overseas jurisdictions such as some US states, have held that even posts on “private” areas of Facebook or MySpace can be considered public, because even though they are made to a limited audience, they may remain viewable for long after they are posted and could at any time be copied by anyone who can access as such.  


 “Whatever you post will be viewed by the entire world“ (http://www.facebookbusinesshub.com/facebook-privacy/) any posts realistically instantly become publically available, even if this is not limited to the group originally invited to view or what they user has mistaken for a “private audience”. This means that there is no reasonable expectation of privacy for Facebook post messages potentially upheld even when made in a private group, and therefore such posts are as public as a blog post.



Private/Public nature of Context:  Burger King vs Unite case


However this principle has not been established in a New Zealand court, and judges here have indicated that there will be an as yet undefined line between which kinds of online speech can be considered public or private. Online speech is, in general considered to be public in nature. This is because placing information online means voluntarily placing it into the control of third parties, who may have the right or ability to copy and retain the information indefinitely, and uses it in whatever manner they see fit, at a time that may be long after it was originally put online.

Different kinds of online expression may have different levels of protection, depending on whether the person writing has a reasonable expectation of privacy. For instances, for example, when a login in is required to view, or others are in most cases considered to be a private communication, which could not be viewed without a court order. However when they relate to employment law matters, private messages on Facebook have been held to be relevant to employment.

On the other hand, communication made via public sites has been held to be public, in the Whaleoil blog post case (2010) for instance the judge said that blog posts were as public as taking out a newspaper advertisement, or printing out a pamphlet and putting it in your neighbour’s mailbox. Posts on Facebook have been held to a similar level of publicity.


Given this, in our opinion the question of dismissal practises and fair warning should be the primary focus in any discussions going forward.



Other previously established case precedents:

Police v Cameron Slater 2010  (aka Whaleoil)    |   CRN 004028329 - 9833

In this case, the discussion revolved around the publication of restricted information (which had been suppressed by court order) intentionally on a blog post. Determined that all material posted online that may be viewed by the public, can be considered to have been published. It is also on record which remains online for a time period which is not controlled by the person who posted it, and may be permanent.

More details can be found at http://www.kiwiblog.co.nz/

The case is important in New Zealand for the following reasons and will if it goes the distance be discussed for years at Law School as legal precedent:

a)               it will examine the role of the internet and technology in law. New Zealand law is relatively untested in this area and again there are several aspects in Whaleoil's defence that he can use to build an argument that I won't discuss here.

b)              it will bring to a head many of the issue currently up for debate around name suppression.

c)               it will give the impeccable and excellent lecturer Bill Hodge yet another excuse to suit up, show his incredibly messy office and front on television explaining the law in his very easy-speak to dummies.



Wellington Free ambulance case (ER dispute)

Disputes between two employees over Facebook outside of work hours was held to have been admissible when considering if it had been appropriate to dismiss one of the parties involved (Wellington Ambulance case, 2010).


Further Referenced or Referred to Articles & Blogs: