A female prison guard fired after posting a sexually suggestive video clip on social media of her in her uniform has failed to win compensation for unjustifiable dismissal. Photo / NZME
A female prison guard fired after posting a sexually suggestive video clip of her in uniform and holding handcuffs on social media has failed in her bid for compensation.
Yael Scott had been employed as a Corrections officer from November 2016 until she was sacked for serious misconduct, following an employment investigation, in September 2020.
The organisation’s Integrity Assurance Team received calls from employees on May 27 and 28 and an email from a prisoner’s partner raising concerns about Scott’s behaviour in a TikTok video she posted online.
In the clip, which had hashtags #thoselooksthoug, #relaxgirlsitsmyjob, #happyinarelationship and #fyp, Scott while dressed in her uniform and holding handcuffs mouths the words “ima take your man if I want to”. Text inserted above the video read “When partners come to see the men …”
After viewing Scott’s account the IAT concluded Scott had breached Corrections’
social media policy by “posting videos of behaviour and/or conduct that would not be acceptable in the Corrections workplace …”, and referred the case to HR for follow up.
Acting prison director Leonie Aben became aware of the issue on May 27 after getting a call from another prison director concerned about material on Scott’s TikTok account.
Later that day the partner of an inmate visited the prison and raised Scott’s TikToks at the front gate.
It was reported the woman was angry and concerned for her partner and she later emailed a formal complaint to the IAT.
Aben also received numerous phone calls from other staff and two written complaints.
Scott was rostered to work managing prison visits on May 28, but due to safety concerns, because the post referenced “partners coming to visit their men …”, Aben made arrangements to ensure she would not be working in the visiting area.
Instead Scott was placed on special leave as Corrections’ believed there was an immediate safety risk to her and other employees following the complaint from the member of the public.
Scott agreed to take the TikTok posts down and was later suspended, which she did not oppose, from work while the employment investigation was carried out.
She was given a letter of concern referencing the TikTok video in uniform and another clip where Scott mouths the words “I’m a savage, choke im, shoot im, stab im … what? That’s how it goes” along with hand gestures.
While Scott was not in uniform she was identifiable as a Corrections Officer because other videos on her account show her in uniform.
During the investigation Scott accepted responsibility for making and posting the videos, agreed the content was inappropriate and expressed remorse.
Scott gave evidence, she never intended to cause any harm and removed the videos, which she believed could only be seen by family and friends, as soon as she knew they could be viewed publicly.
Corrections accepted Scott was under high levels of pressure and stress due to circumstances personal to her during the time they were made and prior to that.
Scott also claimed the circumstances were exacerbated because of the 2020 Covid lockdown, which she worked though so couldn’t contact key family and meant she had very little support at home during the very difficult time.
She alleged other employees had posted similar content and it was unfair because she was the only one being held accountable for it.
The employment investigation resulted in Scott being fired for serious misconduct.
The decision noted the text “when partners come in to see their men …” displayed careless and unsafe behaviour that placed Scott and others at risk, and she failed to understand the seriousness or the potential and actual ramifications of the posts and that the videos may have brought Corrections into disrepute.
Scott took her case to the Employment Relations Authority, claiming her dismissal was unjustified because Corrections failed to properly consider her responses to the concerns raised about the videos she made.
She also alleged there was a disparity in the way she was treated and believed the decision maker had received information obtained in breach of privacy and confidentiality.
Corrections maintained Scott’s dismissal, at the end of the investigation was justified, for reasons including the seriousness of the conduct, the safety and reputational risks created by the nature and content of her posts on TikTok and the work it was engaged in.
In its decision released this month ERA member Sarah Kennedy said they were satisfied the process followed by Corrections was fair and reasonable.
Kennedy noted there was a big difference in how the parties interpreted the videos.
Scott saw them as light-hearted skits posted with a trending song on TikTok, created as a means to relieve stress and engage with her children but accepted they were inappropriate.
Corrections took a more literal perspective.
“Posting in uniform was not permitted by the social media policy and the sexualised content and lyrics describing violent themes such as shooting and stabbing provided an inescapable inference about what was conveyed.”
A significant risk of harm existed to both Corrections and Scotts’ reputations following the posting of the videos, she said.
“Given her position and role with male prisoners in a custodial environment, it is not an unreasonable expectation that videos with sexually suggestive content and conveying words associated with violence, even if intended to be light-hearted, are not created by employees and made available to others.”
Kennedy ruled Corrections had acted as a fair and reasonable employer in all the circumstances and Scott’s claim she was unjustifiably dismissed was unsuccessful.
“I find that despite Ms Scott’s intention, and her experience and commitment to
the job of a Corrections Officer, Ms Scott neglected to recognise the inappropriateness of posts she was creating and uploading to TikTok and the likely loss of control of material in an electronic environment.”