Erin Lynch, Director

Your Company Code of Conduct reads:

“Social Media Activity that contains discriminatory, obscene, malicious or threatening content, is knowingly false, create [sic] a hostile work environment, or similar inappropriate or unlawful conduct will not be tolerated and will be subject to discipline up to an [sic] including termination of employment.”

You are out cycling in the early hours of the morning and the President and his motorcade pass you by. You (not being fond of the President) stick your middle finger up at him. Hours later, your friends are commenting on Facebook that they recognise you in a photo that has been taken of you in the “act”. You make the photo your Facebook cover photo and Twitter profile picture.

The next day, at your part-time job, you find out that they are receiving emails about you and members of the public are telling your employer to terminate your employment (they know you work there because your Facebook profile lists it).

Taking this into account, you think it best to notify your manager at your place of work. You do this knowing that there is nothing connecting you to the organisation. You weren’t wearing any clothing that connected you with the company and none of your social media accounts list the Company as your place of work. The only connection is your LinkedIn profile.

To your surprise you are taken into a room and your engagement is terminated. You are escorted from the building with your personal belongings in a box. The Company is asserting that you have breached the terms of the Code of Conduct above.

This scenario describes the recent experience of Juli Briskman in Northern Virginia. The “act” has cost the 50-year-old marketing executive her job.

To add to the above circumstances, Juli had recently raised (while undertaking her duties monitoring the Company’s social media presence) that a senior director had publicly said, in relation to a political topic on Facebook (where his profile identifies him as an employee of the Company), “you’re a (expletive) Libtard a——,”. However, this (male) employee remains employed.

If the Company had acted this way in Australia it may find itself in “hot water” over the dismissal. The worker may have at her disposal a number of claims, including an unfair dismissal claim, a general protections claim or a discrimination claim.

In respect of an unfair dismissal claim (subject to her meeting the eligibility criteria) the termination may be harsh and unjust, particularly in circumstances where employees who have engaged in similar (if not worse) behaviour have remained employed. Additionally, it appears that there was nothing connecting Juli and the Company and the Company’s awareness of the issue was only as a result of Juli being upfront about her actions.

A general protections or discrimination claim may be commenced on the basis that the Company has discriminated (or engaged in adverse action) on the basis of sex (given the differential treatment of the male employee).

There is also the potential for a claim that argues that the actions taken by the Company impinge on the expression of a political opinion.

While it is not uncommon for organisations to react swiftly to situations that may give rise to adverse publicity and it may be necessary to do so, any reaction should be measured and proportionate to the impact on the organisation’s business. This includes a consideration of:

• the impact of the conduct on the Company’s reputation;
• how the Company may have addressed similar conduct in the past; and 
• whether this is a “one off” incident, taking into account the employee’s employment history.