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Will the stars of yesterday's sex romp be fired?

03 Feb 15

Big news yesterday following the social media fanfare after two Marsh Insurance employees were caught with their pants down in a Christchurch office building. 

The sex romp spread like wildfire over Facebook and Twitter, with the employees being quickly identified, causing Marsh Insurance to investigate the matter. 

According to Gretchen Stone, partner at Auckland-based HarrisonStone, specialists in employment and education law, the images of the rendezvous could have serious implications for the employees. “The employer will investigate and there are likely to be disciplinary outcomes. Termination of their employment is possible,” she says.

Stone says the amount of media coverage the event has brought on may bring the employer into disrepute, “which can be taken into account by the employer when considering disciplinary outcomes.”
Stone says employees can be fired from their jobs when acts such as these are spread over social media. She explains social media has enabled these kinds of acts to be brought the attention of the employer, as well as wider audiences.

 “Social media adds a new dynamic to the employment relationship on many levels,” Stone says. “Primarily it potentially creates a far wider audience for the actions of the employer and employee (both within the workplace and outside of it). 
“In this context it has made the issue known to the employer, and to the public, whereas previously it may have gone undetected.”

Stone says as a result of the public interest which has been created through social media, as well as having to manage the legal side of the investigation and disciplinary process, the employer needs to be very mindful of the public perception of their actions.   

Although Stone is not aware of the terms of the Marsh employees’ employment agreements, Stone says there is an implied duty of fidelity in every employment relationship, which is a requirement to always act in the best interests of your employer. “There may be informal discussions between the employer and employee, but a request to resign would likely amount to a constructive dismissal of the employees,” she says.
Stone says the way Marsh Insurance handles this situation is vital to how they are perceived by the public. “There will be significant public interest in the outcome and the employer will be acutely aware of the way their actions in conducting the investigation are perceived by the public. 

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