Burnout, Instagram posts and an unjustified dismissal: a cautionary tale for employers

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This Employment Relations Authority unjustified dismissal case is a useful reminder for employers about three interconnected workplace risks:

  1. excessive working hours and fatigue,
  2. health and safety obligations relating to psychological wellbeing, and
  3. managing employee social media conduct fairly and proportionately.

The employee was a lead software developer working under intense pressure to complete a major client project. After weeks of excessive hours and exhaustion, he made a series of Instagram posts criticising aspects of his work situation and communicating unprofessionally with a colleague. He was subsequently dismissed for serious misconduct. The Authority found the dismissal was unjustified, but reduced remedies by 50% because of the employee’s own blameworthy conduct.

Excessive working hours

What happened

The employees employment agreement stated his ordinary hours were 40 hours per week, although additional hours could be required from time to time.

However, in the lead-up to a major project deadline, he worked very significant additional hours. Using Git commit records, he demonstrated that over an 11-week period he worked approximately 278 additional hours — about 25 extra hours per week.

The Authority accepted this evidence and concluded:

  • the additional hours were excessive,
  • the hours were unreasonable, and
  • the employer unjustifiably disadvantaged him by requiring those hours.

Importantly, the Authority rejected the idea that a salaried employee can simply be expected to absorb unlimited overtime because the employment agreement says salary compensates for “all hours worked”.

Key lessons for employers

"Reasonable additional hours" still has limits

Even where an employment agreement includes flexibility clauses and no overtime entitlement, employers cannot require workloads that become objectively unreasonable.

The Authority focused on the reality of the hours being worked, not just the wording of the employment agreement.

Employers should actively monitor workload risk

This case demonstrates the danger of relying on high-performing employees to “push through” deadlines without checking whether workloads are sustainable.

Practical lessons include:

  • monitoring actual hours worked,
  • recognising fatigue indicators,
  • redistributing work earlier,
  • using contractors or additional staffing proactively,
  • ensuring project deadlines are realistic, and
  • documenting steps taken to manage workload pressures.

Technology records can become evidence

Git commits, Slack activity, emails and timestamps provided persuasive evidence of excessive work hours. Employers should assume digital work patterns can later be scrutinised in an employment dispute.

Health and safety issues from excessive hours

What happened

The employee argued the excessive workload created an unsafe work environment because he became exhausted, sleep deprived and mentally unwell.

A key piece of evidence was a phone call with the director where:

  • the employer acknowledged the team was working “crazy hours”,
  • the employee said he had already worked 40 hours and was not in a fit state to continue working,
  • he explained he was sick and exhausted, and
  • the employer discussed obtaining contractor assistance.

The Authority confirmed employers have a duty to provide a healthy and safe workplace, informed by the Health and Safety at Work Act 2015.

However, despite recognising the employee was fatigued and struggling, the Authority found the employer had taken “reasonable practicable steps” in the circumstances by:

  • discussing support,
  • offering additional contractor assistance,
  • encouraging him to look after himself, and
  • attempting to redistribute work.

Accordingly, the health and safety claim made by the employee failed – but only just.

Key lessons for employers

Psychological health and fatigue are workplace safety issues

The Authority clearly recognised fatigue, stress and exhaustion from excessive hours as health and safety concerns — not merely performance or HR issues.

This reflects the growing expectation that employers manage psychosocial risks in the same way as physical safety risks.

Employers do not have to eliminate all stress

The Authority acknowledged this was a small business operating under genuine project pressure. The key issue was whether the employer took reasonable practicable steps once it became aware of the risk.

Early intervention matters

The employer narrowly avoided liability because there was evidence it responded once concerns were raised.

Employers should:

  • respond immediately to fatigue concerns,
  • document wellbeing discussions,
  • reduce workload where possible,
  • encourage leave and recovery,
  • provide support resources, and
  • avoid creating a culture where excessive hours are normalised.

This case also highlights the importance of managers recognising when high-performing staff are approaching burnout.

Social media posts and the unjustified dismissal

What happened

While exhausted and sleep deprived, the employee posted a series of Instagram “stories” complaining about work, long unpaid overtime, and his boss. Some posts included screenshots of workplace communications.

The employer alleged that this was serious misconduct and it justified dismissal because of:

  • bullying and aggressive communications toward a colleague,
  • breaches of confidentiality,
  • breaches of the social media policy,
  • reputational damage.

The Authority disagreed and held the dismissal was unjustified due to several flaws in the employer’s approach.

Why the ERA said the conduct did not amount to serious misconduct

The Authority found:

  • the messages to the colleague were unprofessional, but not bullying or harassment,
  • most Instagram posts did not identify the company or director,
  • the posts had very limited circulation,
  • many were restricted stories visible only to followers,
  • the posts disappeared after 24 hours,
  • there was no evidence of reputational damage, and
  • no customers or clients complained.

The Authority accepted the conduct was immature and unprofessional, but not serious enough to destroy trust and confidence in the employment relationship.

The investigation and decision-making were also inadequate

The Authority also criticised the process because:

  • the employer failed to explain how serious misconduct was established,
  • the termination letter lacked proper reasoning,
  • the employer failed to genuinely consider the employee’s explanations and remorse, and
  • alternatives to dismissal were not considered.

A significant factor was that the employee himself alerted the employer to the posts and apologised repeatedly.

Why remedies were reduced by 50%

Although the dismissal was unjustified, the Authority still found Mr Bly’s behaviour contributed to the situation.

The Authority held:

  • the Instagram posts were unprofessional,
  • the communications with the colleague were unacceptable,
  • his conduct was blameworthy, and
  • employers are entitled to expect professional behaviour, even under stress.

Because of that contribution, the Authority reduced his lost wages remedy by 50% (but did not reduce his hurt and humiliation payment).

Key lessons for employers

Social media misconduct still requires proportionality

Employers should avoid assuming that negative or emotional social media posts automatically justify dismissal.

Relevant considerations include:

  • whether the employer is identifiable,
  • actual reputational harm,
  • audience size and visibility,
  • whether posts are temporary or private,
  • employee intent,
  • whether confidentiality was genuinely breached, and
  • the surrounding circumstances (including fatigue or stress).

Context matters

The Authority placed considerable weight on the employee’s exhaustion and the pressure he was under at the time of posting.

That did not excuse the conduct — but it affected how seriously it should reasonably have been viewed.

A flawed process can still defeat an otherwise understandable decision

Even where an employer is genuinely upset or offended by employee conduct, dismissal must still satisfy procedural and substantive fairness requirements.

Employers should:

  • clearly identify the misconduct,
  • explain why it allegedly amounts to serious misconduct,
  • investigate properly,
  • genuinely consider explanations,
  • assess mitigating circumstances,
  • consider alternatives to dismissal, and
  • ensure the outcome is proportionate.

Overall takeaways for employers

This case is a strong reminder that:

  • excessive hours can create both employment law and health and safety risk,
  • psychological fatigue and burnout are recognised workplace hazards,
  • “always available” work cultures can become legally problematic,
  • emotional or unprofessional social media conduct does not automatically justify dismissal, and
  • even where employee behaviour is poor, employers must still follow a fair and proportionate disciplinary process.

The case is also notable because the Authority effectively said both parties were at fault:

  • the employer mishandled workload management and overreacted in dismissing the employee, while
  • the employee’s conduct was sufficiently inappropriate to justify a substantial reduction in remedies.

Always get advice

If you don’t have an HR department, we always recommend getting advice for performance and disciplinary issues, especially if a dismissal could be an outcome. If you’ve got high turnover due to excessive workloads, helping your staff to cope by providing time management training and stress management training is one of the things you can do to mitigate the stress.