Tessa Van Duyn, practice leader and Mariah Khoury, lawyer at Moores, discusses the fine line between employees’ free speech and the employer’s reputation.
Recent cases tell a cautionary tale to employers and employees about public comment and expressing personal views in the course of employment. With the increasing use and prevalence of social media, employers are taking steps to, as far as possible, control and monitor employees’ private activities online.
We have seen much conjecture in the media over the last 48 hours after the High Court’s decision in Comcare v Banjeri. After a protracted legal battle, the High Court ultimately decided that the implied freedom of political communication cannot be invoked as a shield in the face of internal policies and procedures (in this instance, the Australian Public Service guidelines) which were created to protect the independence and impartiality of the public service.
You may be thinking that this all sounds very familiar…
That’s because much has also been written about the dismissal of Israel Folau after he chose to post negative views against a range of people including the gay and transgender community on Instagram saying:
“Warning: Drunks. Homosexuals. Adulterers. Liars. Fornicators. Thieves. Atheists. Idolaters. Hell awaits you.”
In the shadow of public outcry, Folau’s contract with Rugby Australia was terminated on the basis that he breached the player code of conduct. A code of conduct that requires employees to treat everyone equally regardless of sexual orientation, gender, religion or race is typical in many organisations to promote diversity and inclusion and prevent discrimination. It’s also common for a code to place sanctions on those who use social media platforms to air personal views which could put the organisation into disrepute.
In many respects, both of these cases appear to be quite similar on their face. Both feature an aggrieved employee whose employment was terminated for making posts on social media that their employers did not agree with.
While Rugby Australia stressed that Folau’s dismissal was not because of his religious beliefs, Folau has recently made a claim for unfair dismissal under section 772 of the Fair Work Act 2009 (Cth) alleging that the termination was because of his religion, and therefore, unlawful. Under this section, Folau will also need to prove that his Instragram post constituted an exercise of religious freedom.
On the other hand, the Banjeri case was not in relation to the Fair Work Act, but rather she went straight to the Constitution to argue that her implied freedom of political communication had been interfered with.
What does other case law say?
Remember the recent case of a woman who made disparaging, derogatory and offensive comments about her employer’s clients in an email and then accidentally copied those clients into an email? The Fair Work Commission’s decision in the case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd is instructive. It sets out a useful test when determining how to deal with an employee who has engaged in similar conduct.
This two-step test requires an analysis of:
- Whether the conduct is so serious that the employer can no longer maintain trust and confidence; and
- If the personal view has been disclosed to the public, would it cause embarrassment and disparagement to the employer?
If the answer is yes to both, then dismissal may be justified.
Similarly, in the case of Nirmal Singh v Aerocare Flight Support Pty Ltd, an employee was dismissed for breaching the employer’s social media policy by posting on Facebook “we will support ISIS”. The employee lodged a claim for unfair dismissal, believing it was not procedurally fair, just or reasonable to terminate his employment. The Fair Work Commission rejected the applicant’s claim, stating that a comment of that nature could not have been made without enquiry or silence, and evidently had the potential to cause harm to his employer.
The Fair Work Commission in other decisions has also reiterated the importance of having a social media policy to protect the reputation of a business and clearly outline what is expected of its employees.
What does this mean for constitutional freedoms and employment law?
The Morrison government’s proposed Religious Discrimination Act (or “Folau’s Law”),, will consider what protections are available for those who hold, and express, their religious beliefs. It remains to be seen what this Act, if passed through Parliament, will mean for employers and employees as they navigate the difficult balance between how their personal and private beliefs impact their working life.
There is little case law to provide a definitive ruling on where to draw the line on freedom of religious expression in employment law. However, similar cases point to the Courts agreeing that an employer can terminate employment in matters where it is clear that disrepute is likely and can be evidenced.
The outcome of the Folau case will hopefully provide greater clarity on how an individual’s right to hold and express religious views interacts with an employer’s ability to ‘control’ an employee’s behaviour in the public arena and on social media.
As to the freedom of political speech, the judges of the High Court stressed that while the Constitution offers an implied right to free political communication, this is distinct from a personal guarantee for free speech. The test applied in Banjeri was that a law must have an unjustified burden on the implied freedom of political communication as a whole for it to be infringed.
Both cases however highlight the challenges faced by employers to get the balance right between protecting fundamental rights and freedoms and protecting the reputation of their organisation.
  HCA 23.
  FWC 1838.
  FWC 6186.
This article was originally published on Moores News.
Tessa Van Duyn is a human rights and public law expert, who provides strategic and legal compliance solutions for her clients in the government, not for profit and private sectors. As a skilled litigator, Tessa enjoys advocating for her clients in a variety of tribunal and court settings. She can help resolve complex discrimination and administrative law disputes – but she adds the most value by helping her clients to avoid litigation in the first place. Tessa presents regularly on human rights and discrimination at conferences, workplaces and seminars. Connect with Tessa via email: [email protected]
Mariah Khoury is an enthusiastic and highly motivated junior lawyer who enjoys providing clients with strategic solutions, no matter how complex the matter may be. Mariah has worked on many workplace relations, commercial law and pro bono matters, with a particular passion for employment law and human rights issues. Mariah has experience in presenting at employment law seminars and writing articles on various workplace related topics. Connect with Mariah via email: [email protected]