Another employee caught out on Facebook

What did people do before Facebook? The ability to check out what friends and acquaintances are doing, for some, has become part of everyday life.  However, for others it has had unexpected and costly consequences.  You would have possibly heard the tales already – employee gets fired for badmouthing boss on Facebook or for taking a “sickie” and posting about it.  Recently, for one Gisborne man, the decision to call in sick for work and then go on a family vacation cost him his job when photographs turned up on Facebook and were shown to his boss.

The decision to dismiss Mr Bruce Taiapa, a Gisborne youth services worker, for misusing his sick leave entitlements was recently upheld by the Employment Relations Authority in Taiapa v Te Runanga O Turanganui A Kiwa [2012] NZERA Auckland 252.

After he was unable to obtain leave for a family trip he had already arranged, Mr Taiapa called in sick claiming that he had damaged his calf muscle and that his doctor had declared him unfit for work.  Unfortunately for Mr Taiapa, a colleague had seen him leaving town with his family that day.  His manager was also shown a photograph from Facebook which had been taken at a sporting event and showed Mr Taiapa seated on a wooden grandstand smiling and giving the thumbs up with what the Authority described as “a large female sitting on his knee”.  Naturally, Mr Taiapa’s manager concluded there was reason to suspect he was misusing sick leave entitlements.

After carrying out an investigation, Mr Taiapa’s employer terminated his employment and argued in the Authority that the dismissal was justified as Mr Taiapa had engaged in serious misconduct by dishonestly taking sick leave for his own personal reasons.

Mr Taiaka argued that his employer could not look behind his medical certificate because he was entitled to manage his health as he saw fit and that he was doing nothing wrong by travelling out of town with his family for seven days whilst on sick leave.

The Authority disagreed with Mr Taiaka and held that he had been justifiably dismissed.  It held that it was open to a fair and reasonable employer to view Mr Taiapa’s actions as dishonest and to conclude that they undermined the necessary trust and confidence in the employment relationship.  The Authority also noted that the evidence to support an allegation of dishonesty must be commensurate with the seriousness of that allegation and held that the evidence met that high standard, thanks no doubt in part to the photographs posted on Facebook.

The Holidays Act 2003 sets out that employees are entitled to take sick leave when they, their spouse or dependant is sick or injured.  It is also important to note that an employer may now request an employee to provide proof of sickness within three days, without needing reasonable suspicion, provided the employer covers the reasonable costs of obtaining that proof and informs the employee as early as possible that it is required.

This decision should act as a cautionary tale to all employees about what sort of behaviour is acceptable when taking sick leave.  Although it is not necessary to be confined to bed, an employee must decide what is reasonable when deemed unfit for work.  For example, heading out to the supermarket, doctor, pharmacy and even a video store is likely to be found reasonable.  Heading out of town on vacation, to sporting events, going to the gym, pub or movies is not.  Once again, employees are reminded of the powers of Facebook and how that photograph snapped when you are taking a “sickie” may be posted up for the world, and more significantly your employer, to see.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.