Many of us turn to our colleagues via emails, Microsoft Teams and group chats to 'vent' about work. We may not think that these communications can be seen, and acted on, by our employer, but more often than not, they can be. In some situations, employers may also be able to take action for communications that have occurred outside the workplace on private platforms such as Facebook.  

Recent cases have brought to light situations where unsavoury and/or derogatory communications about other persons have resulted in disciplinary action against the employees who made them. This article explores when 'private' communications on work platforms and outside of work can lead to professional consequences for employees.

Legal Principles

Generally, communications on workplace channels (such as emails, teams or workplace apps) can be accessed and monitored by employers on the basis that the employer provides the platform and has obligations to ensure communications are appropriate and do not breach its standards and its obligation to provide a safe workplace.  

When communicating with others on such channels employees should be aware that they are acting in the capacity of an employee of the employer and ensure their communications uphold the values, expectations and policies of the workplace.

Privacy is governed by the Privacy Act 2020 which was formulated based on principles set out in the OECD Protection of Privacy Guidelines. Information accessed or collected by an employer must be done so:

• for a lawful purpose connected with a function or activity of the employer and where necessary for that purpose; or
• with the employee's consent

Many employment agreements contain clauses relating to privacy and access/monitoring of workplace channels. Employers often make it clear that workplace communication channels are provided primarily for business use, that the employee should not have any expectation of privacy and that the employer may monitor these communication channels at any time. By signing the employment agreement, the employee is giving consent for the employer to access and monitor these communications. Even without this clause, it is likely that employers will be able to justify accessing information collecting on platforms provided by them, including email and chat platforms, unless the employee can assert that they had a reasonable expectation of privacy.

In addition, many workplaces have policies around the information systems, social media use, privacy, codes of conduct and bullying and harassment. By signing or, agreeing to, such policies employees agree that their behaviour, including their communications both within and outside the workplace, will uphold these policies.

It seems obvious that employees should be careful about communications in work emails and online chats using an employer's platforms, but what is the position when the line between workplace communications and private communications through external sites such as Facebook become blurred? An employer cannot access an employee's online social media platform or posts unless the information is publicly available, the employee consents or the information is unsolicited.  

However, employees still need to be careful about their 'personal' online communications as employers may take disciplinary action against employees where their communications have the potential to bring the employer into disrepute or otherwise breaches the employee's obligations, such as their confidentiality obligations or their obligations to act in the best interests of the employer or where it otherwise impacts the employment relationship (for example because it amounts to bullying or harassment of others the workplace or to the employers' clients).

Where the lines blur - Cases of interest

Cases involving employee communications are becoming increasingly common. In this article, we summarise three recent cases that demonstrate how employee communications can lead to consequences for employers and employees.

Ministry of Justice employees exposed for calling researcher a 'b*tch'

In October 2023 PhD researcher, Barbara Sumners, requested access to all communications referencing herself under the Official Information Act. This occurred after Ms Sumners had made numerous official information requests the previous year as a part of her PhD research.

When Ms Sumners received the communications Ministry of Justice employees via their Team's chat had called her "a waste of time" and "a b*tch for wanting everything. Does she think govt just has unlimited resources for this type of crap lol".

Sumner was offended and 'deeply disturbed' by the comments made about her. The Ministry of Justice made a formal apology to Ms Sumner about the comments made by their staff.

This case demonstrates how public service workers are particularly exposed to having their communications scrutinised as not only their employer can access their communications, but also the general public.  

It is not clear whether the Ministry of Justice took any action against the offending employees. However, it is likely that they would have been justified in at least warning the employees against engaging in such appropriate communications in future. The communications likely caused embarrassment to both the Ministry and the employees.

Sarcastic and discriminatory email exchange between lawyers

This occurred in the case of Hardie and Brant v New Zealand Law Society, the New Zealand Law Society censured two lawyers for an offensive email exchange.  The two lawyers sent emails to a group of friends (who were also lawyers) organising a cricket game using their professional email addresses where they held themselves out as partners of firms. The exchange involved sarcastic, discriminatory and offensive comments aimed towards, and making fun of, transgender people.

The emails were reported anonymously (presumably by someone in the email group) to the Law Society. The report triggered four years of investigation and court cases. The question was whether the lawyers could be held accountable and whether their comments were a breach of the lawyer's professional responsibilities.

Ultimately, both lawyers did not lose their practising certificate, but the case illustrates how online communications can lead to serious consequences. Regardless of the outcome both lawyers have had their names and their offensive emails published in the media, irretrievably damaging their reputations both personally and professionally.

Racial slur in private Facebook group chat

In Chand v Te Whatu Ora-Health New Zealand, Mr Chand was employed as a psychiatric nurse by Te Whatu Ora-Health New Zealand. Mr Chand was a part of a private Facebook group chat along with 16 other colleagues working at the same psychiatric unit (not all employees of the unit were part of the group chat). During a group chat conversation (discussing employees of the unit not in the group chat) Mr Chand referred to another employee "Ms D" as, "the Māori c*nt" to which three other employees laugh reacted.

An employee in the group chat then revealed the slur to Ms D who was deeply offended. This created a toxic divide in the unit between Māori and non-Māori employees and between those who supported Mr Chand and those who did not. This included targeted and bullying behaviour towards the employee who revealed the slur to Ms D.

Te Whatu Ora dismissed Mr Chand for serious misconduct because the comment was racist, misogynistic, degrading to Māori females and had been made to around 16 other of Ms D's colleagues, despite the fact that they were made on a private Facebook group. Importantly the slur had created such a toxic divide that many employees (including Ms D and her husband) felt unsafe at work and threatened to resign unless Mr Chand was dismissed. Around half of the patients at the unit were Māori females so Mr Chand's continued employment was also considered a risk to the patients. Mr Chand's conduct was a breach of Te Whatu Ora's Bullying and Harassment Policy, Social Media Policy, the Waitematā District Values and the Nursing Council's Code of Conduct regarding respectful behaviour.

Mr Chand challenged his dismissal in the Employment Relations Authority, claiming that he had the right to private communications, that his phone had autocorrected 'CUTTE' to 'c*nt' and that he had made the comment "after a few beers". He acknowledged that his comment was offensive but argued that because it was made in a private chat to friends it was not a work-related matter. He also considered that his comment was 'collateral' in exposing deeper issues already existing in the unit.

The Authority did not make a clear comment about whether the Facebook communications were private, they were described as being made in a 'chat between friends who worked together' to discuss both work, and non-work matters. What the Authority did make clear was that these comments related to the workplace and caused profound impacts on workers, team dynamics and the overall safety of the workplace. These impacts were so adverse that the effect on the work environment and other workers (particularly Ms D), meant Mr Chand could not be reinstated. Mr Chand's breach of values and policies, the reputational risks to Te Whatu Ora and Mr Chand's lack of understanding and remorse of the severity of his actions were also important considerations in the Authority's determination.

Are any communications 'safe'?

The above cases are not the only examples of employees landing in 'hot water' for their communications, both private and work related. All workplace communications on work platforms are 'fair game' to an employer. Even private communications (for example using personal social media accounts), that breach workplace policies and codes of conduct can land an employee in trouble.

There is no tolerance by employers for communications which are bullying, offensive and discriminatory towards other employees, persons, or groups of people and it is likely that they will be justified in taking action against employees who engage in such communications.

What does this mean for you?

Employees

Employees should ensure they understand their workplace privacy and communications policies. They should also understand their workplace values and expectations of conduct and behaviour. Additionally, employees should take care when discussing any matters they would not want their employer to access (even on private social media). Private communications which are bullying, discriminatory or offensive in nature and in turn breach company policies put the employee at risk.

Employers

Employers should ensure they have clear workplace policies and values which employees are aware of and understand regarding communication standards both within, and outside of, the workplace.

Further information

If you have any questions about this article and what this may mean for you as an employer or employee, please reach out to Anne Wilson or one of our employment law specialists for a confidential chat.

Thanks to Law Clerk, Elizabeth (Beth) Wray for her assistance with the preparation of this article.