Would rude gesture to president cost a Kiwi's job?

29 November 2017

Juli Briskman was dismissed by her employer after a photograph of her giving United States President Donald Trump and his motorcade the middle finger became famous.

On October 29, President Trump was leaving the Trump National Golf Club in Virginia after playing golf. A pedestrian gave Trump a thumbs-down as the motorcade drove past. Shortly after, the motorcade overtook a woman on a bike who pulled the middle finger at Trump. A photographer travelling with the motorcade took a photo of the event which went viral on the internet.

Briskman worked in the US for Akima LLC, a construction and engineering company that contracts with the US government. Briskman, to her credit, told her employer that the person pictured in the now viral photograph, was her.

When asked why she made the gesture she replied: "He was passing by and my blood just started to boil. I'm thinking, DACA (Deferred Action for Childhood Arrivals) recipients are getting kicked out, he pulled ads for open enrolment in Obamacare, only one-third of Puerto Rico has power. I'm thinking he's at the damn golf course again."

From the photo it was hardly possible to identify her as the woman on the bike and there was no way of knowing who she worked for.

On the other hand, her employer was displeased that she used the photograph as her profile picture on social media, labelling it as obscene and reprimanding her for it.

She pointed out that her social media profiles did not state that Akima was her employer. Further, other Akima employees had previously made highly offensive political comments on social media when it was clear that Akima was their employer and had retained their jobs with a reprimand.

Briskman, however, was fired.

In the United States freedom of speech is protected under the US Constitution and freedom of expression is an essential part of democracy.

In New Zealand freedom of expression is protected in our Bill of Rights Act.

The Bill of Rights Act does not, however, have all encompassing application. It prevents Parliament, the government, the courts and any other person carrying out a public function from eroding the rights protected in the act.

Employees are not guaranteed freedom of expression in the workplace. Indeed, generally they would be expected to put their own personal views to one side and follow the employer's official views if they were given a reasonable instruction to do so.

There are special rules for the 353,500 public sector employees in New Zealand. There are guidelines to help these employees know the limits of acceptable political expression.

All ministers must be able to rely on the political neutrality of individuals working in their ministry. Any minister would be troubled if one of their policy advisors, for example, was seen to become involved in a debate on questions of government policy.

Of course, there is a difference between actions in a professional capacity and an individual's personal life.

Generally what happens in the private sphere will be irrelevant to your work, but sometimes conduct outside of work will be so serious that an employer can take action against an employee.

In a New Zealand case decided by the Employment Relations Authority, a Mr Dryden worked at a small radio station in Tokoroa. He attended a public meeting and yelled at the town's mayor during the proceedings.

Dryden's manager was also in attendance and was embarrassed by his behaviour, particularly because it was widely known that Dryden worked at the radio station.

The mayor was also an important client of the radio station and they needed to maintain a good relationship with her.

The upshot of it was that Dryden lost his job and made a claim to the Employment Relations Authority.

It was determined that Dryden's behaviour toward his manager at the meeting, when the manager addressed his conduct, was disrespectful and inappropriate and his serious misconduct justified the dismissal.

Actions like Dryden's that occur outside of work but bring the employer into disrepute can be considered serious misconduct and justify dismissal.

The Human Rights Act prohibits discrimination on the basis of political opinion and applies to all people, including employers. The act also specifically prevents employers from refusing to employ someone or dismissing someone because of their political beliefs.

However, this provision will not be a defence for employees who carry out serious misconduct outside of work. Conversely, if an employee was dismissed for merely attending a political meeting, this would be discrimination under the act.

The state of Virginia has what is called "fire at will" employment law, which allows private sector employers to fire workers for any reason.

Obviously that is not possible in New Zealand with the qualified exception of new employees with a 90-day trial clause, but even then there are some safeguards.

So Briskman was fired and could do nothing about it. Encouragingly the 50-year-old single mother-of-two captured the public's attention and received widespread support. A website set up to support her raised more than $130,000 over 20 days.

The photo of Briskman pulling the finger at President Trump's motorcade has sparked questions of how political views fit in with employment.

New Zealand law is fairly supportive of an employee's right to freedom of expression. Employees can have whatever political views they want outside of work, but should be careful not to stray into areas where their actions might harm their employer's reputation.

Fortunately, Kiwis are usually tolerant employers and individuals are restrained and thoughtful in how they publicise their political views.