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back to article Apple was OK to fire man for private Facebook comments

Apple was right to fire an employee of one of its UK stores for saying rude things about the company on his Facebook wall, an employment tribunal in Bury St Edmunds ruled.* The tribunal judge upheld Apple's dismissal of the man for gross misconduct in a case which sets another precedent for social network users who like to bitch …

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So someone printed something out, and someone else got fired for it?

How can you get fired because someone said that you said something!?

Couldnt he have just deleted it from his wall, then complained that the other person was setting him up?

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Anonymous Coward

Not too difficult to forge a print out

Seems like a simple matter to get just about any Apple employee fired.

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Anonymous Coward

Err

He *could* have deleted it from his wall but the evidence was there in paper form for all to see!

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This post has been deleted by its author

Bad idea...

I don't know the laws in the UK, but in most countries it is a crime to lie to a court or to a policeman... if he had done that, the court would have asked facebook to check if it was true or not and he would have bigger problems!

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Anonymous Coward

But Apple couldn't have fired him if he claimed he didn't post the comments. All they had was a printout. Even if he lied to Apple about it, they wouldn't have grounds for dismissal.

If they did fire him, and he sued, he'd have to admit to the court that he had posted the comments, and lied to Apple about that, but Apple would still be in trouble for sacking him without sufficient justification - they didn't know about the lie at the time the sacked him.

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I know a bloke who got binned from a local authority job recently for some of the things he posted on facebook.

To be fair it was pics of him "planking" on top of someones kitchen cupboards. Again a colleague showed it to the boss and he was binned within 48hrs.

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Anonymous Coward

Hmmm

Apple products lick the salty sweat off ancient crinkley donkey balls.

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Megaphone

Apple products lick the salty sweat off ancient crinkley donkey balls.

Not my words, I'm just quoting someone who posted this on the web. I think he/she might work for Apple.

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Megaphone

Apple products lick the salty sweat off ancient crinkley donkey balls.

Is there an echo in here?

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No...

... you do!

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Anonymous Coward

Stand-up comedians must live in fear of your audience participation.

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Coffee/keyboard

You sir...

owe me a new keyboard!

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"someone could have copied and pasted" therefore it's public.

Hearsay anyone? Burden of proof that he posted the comment? etc etc. Someone could always repeat something I said down the pub it doesn't not make it hearsay.

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=> Hearsay anyone? Burden of proof that he posted the comment?

You're confusing civil and criminal law here. Criminal law - yes, proof beyond reasonable doubt. Civil law - what's reasonable.

Based only on what I've read in Hamnett's commentary, there was no argument submitted to the effect that he denied making the comments, so the question doesn't arise. Apple's policy clearly stated he should not rubbish the brand; he did so, deliberately, in a semi-public forum; that goes to the heart of the contract - gross misconduct, dismissal. Glad to see that Tribunals still have sense occasionally.

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Anonymous Coward

@jbuk1

This isn't a criminal case, it's an employment tribunal.

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N00

If copy paste makes anything you say in social media public then surely that makes anything you say anywhere public with record and play or remember and repeat?

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Anonymous Coward

For once...

..I'm on Apple's side (probably the first and last time though :-)

If it's in your 'acceptable use' policy that public adverse comments about your company on social media sites is considered gross misconduct - and the employee agreed to that policy by virtue of their employment contract - then they don't have a leg to stand on.

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well ..

.. it's clearly debatable as to whether this particular issue was "public". But, more generally, where are you going to draw the line on what limitations on your non-work life can be enforced in your employment contract? Thin end of the wedge, and all that ...

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Any time there's a job shortage, some managers start imposing draconian rules on employees. Because they can. Because they can get away with it.

"If you don't want us to control what you do in your 'own' time then don't work here. No other jobs around? Tough."

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@AC

That is exactly the point here. He set the privacy settings to private, or at least restricted it to a small group of friends. This is at least the scenario which this article states.

Frankly speaking your mind so long as it is factual and not just a load of crap should be included as nothing more than free speech.

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Big Brother

However is it a fair condition of the contract of employment?

Is it really GROSS misconduct? Perhaps it could be a disciplinary item, but GROSS misconduct?

Does the punishment really fit the crime. Clearly the tribunal thinks it did. I think they've set a dangerous precedent for employment T&Cs

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Big Brother

"If it's in your 'acceptable use' policy that public adverse comments about your company on social media sites is considered gross misconduct..."

Well, for a start "acceptable use" policies generally only apply to the use of company resources on company time, and secondly, to quote the article...

"A striking feature of the case was that although the man's Facebook comments were not public - privacy settings had been applied - the judge decided because that the comments could be easily copied and pasted by his friends they did not attract any privacy protection."

I find it slightly worrying that a judge would make that decision - if making comments in a private space on a social networking site can be interpreted as public behaviour where does it stop? Could the "copy and paste" argument be extended to private email?? Should Apple store employees be concerned that confiding to ones Significant Other in a moment of post-nookie relaxation that there might be an element of form over function in some Apple products and that the absence of removable battery packs could be a bit annoying might result in disciplinary action if said SO was to "hear and repeat" those views outside the house???

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Boffin

@AC 12:06

The AUP prohibits adverse comments in public. Comments on your private wall are not public, any more than the content of an e-mail sent to a few friends is equivalent to sending a letter to the Times.

On a scientific note: I find it interesting that as soon as you took Apple's side for the first and only time, you immediately turned into a kneejerking idiot who couldn't understand a simple concept like privacy. We already knew that mindless people are often known to support Apple, but is this the first evidence of a causal connection in the opposite direction - that the act of supporting Apple is enough to induce mindlessness in people who are at other times of normal intellectual capacity? An Ignobel beckons...

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It's actually a standard thing that if you publically criticise your employer, you can be done for Gross Misconduct, and I doubt that Apple are the first company to fire someone for gross misconduct for posting something on facebook.

A friend of mine posted exactly what he thought of his employers and within two hours he was punished. On that occasion though, he was given a verbal warning.

Personally, I think that as long as the terms and conditions of employment are fair to both parties (and I think it fair that either party can insist that the other party does not criticse them publically), I actually don't have a problem with either party saying "You read the rules, you agreed to and then broke them, you should suffer the results". Essentially what both Apple and the Tribunal have done.

People also need to remember that while Facebook does offer privacy controls to limit other people's access to your area (wall, photos etc), other people can still read what you post, and they may not have your best interests at heart. This is exactly why what I post on Facebook actually contains very little important detail, and never (directly or indirectly) references who I work for.

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Agreed.

This case needs to be appealed. And I'm not the sort of person to often say that.

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Maybe not gross misconduct, but five will get you ten that this person was one of the more troublesome employees for that boss. It's very difficult to flat-out fire people these days, lawsuits being what they are, so often layoffs can act as a way to clear out people with much lower threat of legal action.

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Pot meet Kettle

Emailing comments to friends could get you sacked too. It doesn't matter if your intention is only publish to a small number of friends you don't have control over them so the comments are in the public domain. In this sense the tribunal is following legal precedent.

It might not have been the intention, but a lot of people these days don't understand the reach of electronic media or the concept that once something is out there they have no ability to get it back.

Interestingly you finish with a mindless rant about people supporting Apple being mindless. Shouldn't all people and comments be judged on their merits? This isn't something that you appear to adhere to yourself inspite of condemming others for not doing so.

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Anonymous Coward

Re: For once...

Fire the Judge: Apple should have lost this case on 'illegal contract' look it up, apple cannot enforce things you do in your private life....

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Meh

Comprehension skills.

You didn't read the article did you?

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that seems wrong

"Emailing comments to friends could get you sacked too. It doesn't matter if your intention is only publish to a small number of friends you don't have control over them so the comments are in the public domain. In this sense the tribunal is following legal precedent."

Um. By that logic, a private letter isn't private because it can be photocopied. *any* form of communication can be reproduced, so are there no private communications, according to you?

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What a snitch!

The 'friend' was likely one of those girls at primary school who liked to tell teacher you had done something naughty.

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And probably works in education or at a newspaper. Assuming anyone actually WORKS at a newspaper, ifyaknowwhatImean

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FAIL

er

no, the 'friend' worked at Apple too. I can see your disdain for education developed early, since you seem to have flunked reading comprehension.

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"Apple had in place a clear social media policy and stressed in their induction process that commentary on Apple products, or critical remarks about the brand were strictly prohibited."

I've been to an Apple recruitment event. Their policy in this regard was outlined in very clear terms right at the start.

Case closed.

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Anonymous Coward

Re: Case closed

I think you will find that company policy != laws of the State (yet).

The former can and very often do go well over what is legally enforceable, even in business-friendly courts such as the England's, for the strategic reason that they know most employees will not dedicate the considerable time and resources required to seek legal redress.

As for this particular case, is there any indication whether the person affected is planning an appeal?

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Sadly it does look like case closed, but it is a dreadful precedent to set.

Where is the line to be drawn? If I disparage my employer in a private conversation and it is recorded by a 'friend' and put on line, would that be reason to dismiss me for bringing my employer in to disrepute? How about if they intercept my post or email, or rifle through my bins to gather evidence of my dissafection and miscreance?

Some floppy haired Gen Y'er from a Shoreditch Roundabout startup clearly funded by Daddy's money was berating a bunch of us old fogey IT Directors over dinner at a recent conference, instead of going away to play with his Lego and leaving us to get quietly sozzled which is SOP at these events as any fule kno'.

He was banging on about (amongst other things) how social media was the end of email as the main means of discourse, both for business and pleasure, just as email was the end of the postal letter. This ruling pretty much torpedoes such notions if it is left unchallenged.

I really do think individuals (and corporate entities) should be allowed have a reasonable expectation of privacy when communicating via any non-public means, including messages sent to groups on social networking sites where they have explicity applied privacy settings to limit the distribution of the message.

Of course an untrustworthy individual can betray a confidence by cutting, pasting and reposting your message, but then so could they forward a private email, or scan and upload a letter that you posted to them. I wonder what the ET's view on expectations of privacy are in those circumstances? I suspect that they would have reached a different conclusion entirely.

After all, Bradly Mannup and Julian Asswhinge pulled off the biggest cut and paste job of private information of all time, and the courts are not taking a view along the lines of 'You stored your diplomatic cables on a computer in a bunker, and you expected them to stay secret? More fool you.'

The Web was considered to be the wild west and beyond the reach of the law for a brief, utopian, period but the law rapidly caught up when it came to egregious criminal activity and loss of corporate profits (not that it is being particularly well enforced, but then you could say the same about burglary and car theft to be honest). I wonder when the law will actually get around to effectively addressing the legitimate right to privacy of the man on the Clapham omnibus?

I'm not talking about the Data Protection act here. It's largely ignored by most businesses, or delgated to a dusty compliance department who issue policies and procedures but don't have the clout and resources to monitor and enforce them. It is pretty clear that many big businesses actively breach the DP Act in pursuit of profits, and the toothless regulator does not have the time or resources to do anything but make an example of a few of the most high profile cases.

At the moment, governents the world over (and especially in the UK it seems) are desperately pushing us towards online services to cut costs and extert more control over their citizens by knowing who they are and what they are doing and saying. They also want us to embrace this technology in order to kick-start the dire UK (and World) economy. This wont' happen whilst we have no real way to control the privacy and distribution of our online information, and this case is a good example of the double standards currently being applied.

What we actually need is a regulatory framework that protects and enables individuals to pursue businesses and individuals that breach their privacy or abuse their data in a far more straightforward and cost effective way. An individual fifty years ago might make a handful of transactions that could involve the legal system (marriage, property purchase, serious injury and death being about it for most), and only a few out of those cases would have justified coming before the courts or other legal apparatus.

A legal system designed for that age is not fit for purpose in this brave new world. The vast majority of us would have multple causes to take action every single year due to the huge number of online interactions we have with individuals and corporations and the increasing level of (largely hidden) abuse that we are being subjected to.

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FAIL

In case you needed any more reasons...

This is yet another reason to neither work for Apple nor buy their products.

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WTF?

My understanding is that you can put anything in the contract

but just because it's in the employment contract doesn't make it enforceable.

E.g. My employer could demand that on leaving their employee I hand over my first-born child. That can go into the contract, I can sign it, but no court is ever going to enforce that when I quit.

More common example is where employers state you can't go to work for the competition when you leave - usually unenforcable due to over-riding laws on restriction of practice.

I would have thought this would be a similar case - seemingly it isn't...

Comment in the article about this not being covered as other people could print it out... surely the same logic should prevent you from saying anything where there was a possibility it could be recorded.

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They left a word out...

"but Apple successfully argued that it was justified and proportionate to limit this right in order to protect its commercial reputation against potentially damaging (private) posts."

So even saying Apple product sucks in private is something to release the lawyers over. (Quiet tutting in the background)

"And second because such comments would be particularly damaging for Apple as 'image is so central to its success'."

Image is the only reason for Apple's success. That combined with a 40% mark-up.

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Holmes

> Image is the only reason for Apple's success. That combined with a 40% mark-up.

Lastly, they also need a pool of image-obsessed, money no object, me-too 'individuals' who believe they 'think different' to act as their market. Apple have milked them well, and they love it, so it is a match made in heaven. Although I'm prepared to admit some of Apple's products are quite good in themselves, and some Apple product owners are indeed rational, its their branding and marketing which mostly sets them apart.

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Wow.

Bad precedence

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Anonymous Coward

Re: Wow.

Precedent

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Anonymous Coward

in the interests of balance

and to encourage open-ness and transparency...

who was snivelling, back-stabbing, arse-licking, self-serving, contemptible corporate drone who shopped him?

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Who?

The one in casualty with the boot stuck up their arse I'm hoping.

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Be inclined to have gotten rid of the snivelling, back-stabbing, arse-licking, self-serving, contemptible corporate drone myself.

Let's face it - if he's prepared to do that to a "friend" then he'd be prepared to do the same thing to anyone there, including his boss; especially to get up the next rung on the corporate ladder. Maybe that's simply the kind of culture Apple employees enjoy - "Be a company informer. Betray your colleagues & co-workers. Fabulous prizes to be won"

His boss should definitely have checked the conversation wasn't being recorded.

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Big Brother

That would have been one of his facebook friends....

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@OldBiddie

it's always nice to have Sociopath Creds on the CV.

It helps if an Employer wants to promote from within. Of course the same can be said of juvenile records of torturing small animals, but those are normally sealed.

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dcd
Unhappy

Article 10

You have it (the right) but commercial interests can cast it aside.

Bad precident indeed.

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Anonymous Coward

Re: Article 10

PRECEDENT!!!

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