Autumn 2015 Newsletter

Work life and private life – implications of social media

In the last decade the use of social media has exponentially expanded. Social media such as Facebook enable users to interact with large numbers of people, with immediate and permanent impact. Users of social media might assume that their use of sites such as Facebook in their own time has no relevance to their work life; however, the impacts of the use of social media can overflow from a user’s personal life to their work life, with serious effects on both employee and employer.

The effects of the use of Facebook in an employee’s own time were recently illustrated in an Employment Relations Authority (ERA) decision Blylevens v Kidicorp Limited [2014] NZERA Auckland 373. Kidicorp employed Ms Blylevens as a centre manager. A number of staff and parents made complaints about Ms Blylevens, which Kidicorp investigated.

During the investigation Ms Blylevens sought assistance from an advocate, Ms Rolston. While representing Ms Blylevens, Ms Rolston posted derogatory comments on her own business Facebook page. Ms Rolston made various comments in two separate posts about Kidicorp, including allegations of Kidicorp “removing unwanted staff”, “bullying”, describing HR as the “vindictive Kidicorp HR Krew” and stating that Kidicorp created a “toxic” environment. Ms Blylevens ‘liked’ Ms Rolston’s posts, and added her own comment to one of them, noting that it was “an interesting article” and “that as a parent looking for childcare it’s good to be informed”.

Ms Blylevens was identified on Facebook as an employee of Kidicorp, and her Facebook friends included other Kidicorp staff and parents. Ms Blylevens’ ‘like’ of the posts ensured that Ms Rolston’s derogatory comments were disseminated to a wide audience. Kidicorp had a social media policy that prohibited employees from posting information that could bring Kidicorp into disrepute or that could cause reputational damage. After Kidicorp became aware of Ms Blylevens’ actions in ‘liking’ and commenting on the derogatory posts, an investigation was launched. Ms Blylevens was dismissed for serious misconduct.

Ms Blylevens challenged her dismissal. The ERA found that her dismissal was justified. Ms Blylevens’ explanation that her ‘likes’ did not endorse or support Ms Rolston’s derogatory posts was not accepted. The ERA likened Ms Blylevens’ actions in ‘liking’ and commenting on the posts to her standing outside the childcare centre and handing out copies of Ms Rolston’s derogatory comments about Kidicorp while telling people “here is an interesting article – it is good to be informed”. The ERA had no difficulty in finding that Ms Blylevens’ actions breached her employee obligations of fidelity, loyalty and good faith.

This case clearly illustrates the need for employees to be mindful that their use of social media in their private capacity and in their own time may have unexpected implications for their employment. This case also provides employers with some assurance that if an employee is using social media in a way that may damage an employer’s reputation, an employer can consider disciplinary action.

 

Trust law: trustees’ duties – are you at risk?

You might have been asked by a friend or family member to be an independent trustee of a Trust. You may also have been appointed as an executor of someone’s estate, which will often also make you a trustee of the estate assets.

Trustees have strict duties to the beneficiaries of the Trust. Most duties are contained in the Trustee Act 1956. In certain situations trustees can be held personally accountable for their actions or for failing to act, so it is important trustees understand their rights and obligations.

All trustees must know the terms of the Trust (or the terms of the Will as the case may be), and must ensure the Trust (or Will) is managed in an efficient and economic manner. Trustees should take all precautions that an ordinary prudent business person would take in managing similar affairs of his or her own – a trustee must act with care and diligence. An independent trustee is not a ‘rubber stamp’, meaning they must not blindly agree with and follow the instructions of the remaining trustees or settlors; trustees must carefully consider their decisions.

Trustees have a duty to make prudent investments. This duty applies to the methods trustees use to make the investment, rather than looking at the actual results of that investment. A failed investment is not necessarily a breach of trust as long as the trustees acted prudently when choosing that investment.

Trustees must be impartial. They must consider the needs of each beneficiary and have a duty to manage the Trust assets in the best interests of those beneficiaries in accordance with the terms of the Trust deed or Will. Trustees must avoid being in a position of conflict between their duties to the Trust and its beneficiaries.

Trustees are accountable to beneficiaries. They must keep proper accounting records and may be required to give beneficiaries information and explanations as to the investment of and dealings with the Trust property.

A breach of trust by a trustee can mean he or she is personally liable to the beneficiaries for any loss caused, particularly if it was an intentional breach of trust, dishonesty or negligence that caused loss. If a trustee can demonstrate that he or she acted honestly and in good faith and that the breach of the terms of the Trust was unintentional on their part, that trustee would not ordinarily be liable to the beneficiaries for the consequences of their breach.

When a Trust enters into a contract with a third party the trustees will typically be personally liable to ensure that the contract is completed. They may have a right to be indemnified from the assets of the Trust (meaning the liability they incur will be paid for from the Trust assets); however they will lose that right of indemnity if they act in excess of their Trust powers or in breach of their Trust duties. In addition to this, any right to be indemnified is only useful if the Trust actually has realisable assets. Recent case law has seen an independent trustee personally liable for Trust IRD debt, as the remaining trustees had fled the country. While the independent trustee had the right to be indemnified, there were no Trust assets left to cover the debt. The independent trustee paid the IRD debt using their own funds.

Mediation

Do you wish you could resolve a dispute yourself? If you do, attending private and confidential mediation may help.

From time to time disputes arise between people, for example, business partners, family members, neighbours, friends and associates, or work colleagues.

What is mediation? Mediation is a process by which parties themselves agree to sit down and see whether they can resolve the dispute with the aid of a neutral third party mediator. The mediator helps parties to:

You may be familiar with mediation in the context of alternative dispute resolution processes in employment relationships, or through the Family Court, however private mediation can occur when both parties agree to engage their own mediator. Mediation can provide both parties with an informal, quick and cost effective way of seeing whether disputes can be resolved in a manner that meets both parties needs and concerns.

If you would like to know more about mediation, Kath Taurau, lawyer and accredited mediator (through LEADR NZ), can answer any questions you might have. You can contact Kath directly on 09 407 0175 or at kit@mcleods.co.nz.

 

Snippets

Staff

Kath Taurau

We are pleased to welcome lawyer and mediator Kath Taurau back to the McLeods team. Kath returns to us after several years working as a barrister focussing on employment, resource management, mediation and Treaty of Waitangi work. We are excited to have Kath’s skill set and experience available to our clients. You can contact Kath on 09 407 0175 or kit@mcleods.co.nz.

Reception Team

Our friendly new reception team in now made up of Margaret McLelland and Shirley Rundle, another returning staff member we are happy to have back.

Mangonui Pop-Up Office

Office open days are fortnightly on Mondays from 10:30 to 12:30 or by appointment.

Our clients living North of Kerikeri have commented they like the convenience of this service.

For more information, contact lawyer Sacha Yanke on 09 407 0178 or sky@mcleods.co.nz.

All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.

 

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McLeods Lawyers — 21 Hobson Avenue, Kerikeri, Bay of Islands, New Zealand — Phone +64 9 407 0170 — Email law@mcleods.co.nz

The information on this site is not comprehensive legal advice. Please contact us for advice and information suited to your needs.