Harmless Fun or Serious Misconduct?

First it was Twitter and Facebook, then it was Instagram and Snapchat, and now it is TikTok. While the social media app has been around for some time, TikTok has exploded in popularity across the world since the COVID-19 pandemic.

TikTok allows users to easily create and share short videos. However, the open nature of the app and its popularity is prompting people to shoot and share footage of themselves and what they are doing at work, and TikTok even has a hashtag dedicated to the workplace. This poses a range of issues for employers and raises the question as to whether such conduct may justify dismissal.

Unfortunately, there is no straightforward answer, and every situation will rest on its own facts. However, if an employee is making TikToks in worktime, or whilst representing his/her employer, it is possible that this may amount to conduct which substantively justifies dismissal.

Firstly, the employee is clearly not devoting worktime to the performance of his/her role. Secondly, if the workplace or any workplace property/files are identified, there may also be issues concerning reputational damage and/or a breach of privacy. For example, an employee may film a TikTok dance in their uniform and/or with their employer’s signage in the background, or in front of identifiable client files. There may also be evidence that an employee has acted in breach of health and safety or other workplace policies or procedures.

While we are yet to see any cases involving TikTok in New Zealand, there have been previous cases relating to social media and similar fads determined by the Employment Relations Authority. In 2011, a senior employee of Fonterra was held to be justifiably dismissed for posting photos to Facebook of two employees “Planking” on top of heavy machinery.[1] The Authority concluded that the employee’s actions amounted to serious misconduct, which was supported by the fact that he held a senior level role within the business.