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Investigations - so you think your Facebook is private?
Jun 8, 2015

Investigations - so you think your Facebook is private?

A team is not a group of people who work together.  A team is a group of people who trust each other

- Simon Sinek

More and more in my work as an investigator, the use of social media is brought into complaints about behaviour, predominantly as evidence of bullying or other misconduct.

A recent investigation into bullying produced an interesting turn of events.  A witness produced a screen shot of a Facebook group message sent to her and others in the workplace.  She said she had felt uncomfortable about it at the time, but had mentioned it to no one at the time at the time either, not wanting to 'get involved'.  She told me that she had not participated in the conversation and had 'left' the conversation once other messages came in so she only had the one screen shot.  What was telling, was that the respondent to the bullying allegation had sent a group message saying:

'I can't stand that stupid bitch. I  am determined to make her life so f***ing miserable that she'll wish she had never applied for the job in the first place.  Who's with me?'

Case closed?  Not so fast, unfortunately.  Bullying has to happen 'at work' for it to be considered to be workplace bullying, so the usefulness of this one Facebook message, between several people from the workplace, sent at night outside work hours, only goes so far.  It is important to note that no name was mentioned in the Facebook message, even though the witness said she understood it to be referring to the complainant.

The behaviour complained of 'at work' needs to meet the litmus test, on the balance of probabilities, that it is bullying.  The screen shot however was useful as supporting material as to intent, and the probability that the behaviour was unreasonable.  The evidence of bullying was such that it was proven, on the balance of probabilities, to have occurred, over several months and in several different ways.  The person who sent the message was the respondent, and the behaviour complained of commenced at approximately the same time as the message.  But the message itself, was not sufficient.

The important lesson for both employees and employers is that even if Facebook pages and other forms of social media are set to 'private', it is still possible to access this information.  Others may copy or print off posts or forward them to other people, in the workplace and to a wider audience.  Technological advances also mean that employees with smart phones provided by their employer may have their private social media presence monitored from time to time.  Employers must review their policies on a regular basis to ensure their policies keep pace with technology, and that staff are aware of those policies.  This client also amended their policy to include a 'bystander' clause to encourage those who witness inappropriate behaviour to step up and support the recipient.

Of course, the number one lesson is that people should always treat their work colleagues with respect - it is not that hard to be kind, to be honest.

Social media has many advantages but it comes with great responsibility as well.  Anything you post, even if you think it is private, can still be used as evidence against you, and others in some cases,  in an investigation

 

 

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