If your employer tells you to ‘stop doing that, you’ll go blind’ online, do you have to stop doing it?
Short answer: yes, with a but.
As I specialise in long answers though – see below. Caveat – I’m not a lawyer. This probably misses a ton of stuff cos I’ve shortened it from the original, much longer, draft. This is just for discussion, comment, and thought provocation at the moment. It also has far too many Battlestar Galactica references.
At law it is generally well recognised that employees have several duties of care that they owe to their employer . There are three core duties of an employee to their employer that have a clear link to an employee’s online social networking activities:
- to work with care and diligence,
- to obey all lawful and reasonable orders, and
- to act with good faith and fidelity.
There are essentially two types of employee: a standard employee (on a time-service contract) and a professional or staff employee (on a task-performance contract) . Professional and staff employees, and especially those employees with client-facing roles, are generally held to a higher standard, particularly where their actions may tarnish the employer’s image.
The employee has a positive duty to be efficient, and to avoid negligence in carrying out the work. In the context of online social networking, an employee might breach this duty where their use of such tools affected their efficiency (for example, through cyberslacking) or using a social networking tool in an inappropriate way (for example, to store client material or to carry on client conversations).
An employee must also obey the ‘lawful and reasonable’ orders of their employer, taking all reasonable steps to carry out the tasks promised under the contract of employment. Criminal acts outside of the workplace may prevent the employee from carrying out their duties, and thus breach this duty. So if you joined an illegal OSN, or advocated criminal behaviour in an OSN (use your imagination but it probably involves terrorism, nazis, or pavlova) it might be difficult to keep doing your fracking job (sorry – Battlestar Galactica reference).
It is likely though that the activity would need to be very much at odds with the employee’s role for summary dismissal or discipline to be justified.
Employees do have a duty to act with good faith and fidelity (see especially Blyth Chemicals Ltd v Bushnell 1933 ). Employees must not act in a manner that is in conflict with the interests of their employer.
As part of this duty of good faith and fidelity, the employee must not disclose information where disclosure of such private information (for example, profits and losses, customers, methods and techniques, etc) might help a competitor. It is likely, for instance, that posting a blog topic about business strategy, or the file notes from an internal meeting, would breach the duty. The duty operates to limit the employee’s ability to comment upon the business of the employer.
I was flabbergasted to find though that in the Cockatoo Docks Case (1946) it was found that an employer was justified in summarily dismissing an employee who wrote an article in a Labor Party newspaper that was critical of his employer. Try that one on today! Although it is not likely that this decision would be followed today, there are clear parallels to be drawn with online social networking activities.
The biggest issue for bloggers and Facebookers everywhere? Tarnishing corporate image.
For this duty to be beached there generally needs to be a relevant link with the employer such as a uniform. In Rose v Telstra Corporation 1998 it was acknowledged that employers ‘do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life.’ In addition, when an employer’s actions constitute constructive discharge, the employer may be held liable for creating intolerable working conditions that force an employee to resign, further underscoring the importance of maintaining boundaries between work and personal life.
In the context of online social networking, presumably this connection would exist where the employee discloses the name of their current employer, or where the individual is in a senior client-facing role so as to be likely to be identified from their profile by a customer or prospective customer.
Some employers use things such as AWA’s etc to prevent, for example, a mining company employer stopping an employee joining a group that is protesting the mining company’s actions.
As a general principle, employers seeking to rely upon this power of control must set out their expectations very clearly, and ensure that the employee has consented to such contractual terms and that the expectations have been brought to the employee’s notice. In particular, the duty that an employee owes to act in good faith and with fidelity operates so that the employee should not ‘tarnish the business’s image’. The business’s expectations of its employees however must be very clear if the employer seeks to control their employees’ actions in private.
Personally I’m coming to the view that if it’s your private blog or Facebook, keep your employer’s name out of it – it’ll be sweeter for all that way.
Image from Flickr User Akbar Simonse. Some Rights Reserved.
