What’s the controversy
Every year around the 26 January, opinions on Australia Day becomes a controversial topic across the nation. Opinions are divided. Some view the national holiday as a celebration of genocide and vicious colonialism. Whereas, for others it is a celebration of Australian pride and patriotism. Due to the conflicting opinions there are annual arguments whether employees should be allowed to work on this day. And if an employee’s political views do not align with their employer, should they, or can they, be fired for it?
For some employers, Australia Day is a cheerful celebration resulting in employees having the day off to work. In Australia we love our holidays. (one of the highest rates of any country in the world). For others, employers are more lenient and allow employees to work if they wish to. Or even refuse employees to say the word ‘Australia Day’ to stay respectful to Indigenous Australian and their violent history.
Discriminated for your opinion on Australia Day
Protected by the Fair Work Act 2009, it is against the law to discriminate against a person due to their political beliefs. This is also protected across state anti-discrimination laws. While discussing political belief, it is usually related to events around voting season and government actions. Such as the 2023 Indigenous Voice Referendum.
However, the formal requirement is that there is commitment to a certain political party or idea. In which surrounds expressed political, socio-political, moral attitudes, or civic commitment. This refers to all and any dealings that surround the government. Including their actions, promises, debates and more.
Therefore, it is easy to see that opinions surrounding Australia Day can be considered political opinions. Australia Day is safeguarded through Federal legislation and requires government intervention for any change or amendments. Furthermore, certain government parties and large organisations have held very public opinions regarding the celebration of Australia Day. Due to the morality of Australia’s colonial history and the lasting debate of Australia Day’s legitimacy the topic can be considered a political one.
The topic of Australia Day may arise in numerous ways. For example; through certain company policies, employees who attend rallies and protests, posting certain opinions online. There is typically greater action than an employee wishing to work or not to indicate a certain political belief.
To be considered discrimination the employee in question would have to be treated worse and less favourably than other employees because of their political view. To be treated less favourably could mean to be dismissed, bullied, demoted, purposefully isolated or subjected to a unnecessary workplace investigation.
Does the government care about your opinions on Australia Day?
In 2018, there was public division as the Victorian opposition Leader, Matthew Guy. He promised that if he was elected he would fire any staff that refused to celebrate Australia Day. This came as a reaction from a number of councils voting to remove the day altogether.
However, local policies have also changed to reflect the disapproval of Australia Day. During Scott Morrison’s term he removed a certain rule. Resulting in local councils no longer being forced to run citizenship ceremonies on January 26.
Both examples above highlight how political views are shifting and can create division. If federal and state governments can’t align in their political views then it is unrealistic to expect all employers to as well. Employers will dictate their company typically to reflect their own views and morals. Which can conflict with an employee’s views.
Additionally, Channel 10 had taken a firm stance against Australia Day. Writing in an email to their staff that 26 January will no longer be referred to as ‘Australia Day’ within the company. And that staff were permitted from treating the day as any other day.
Australians do not have free speech
Unlike similar western countries, Australia does not have the right to freedom of speech in most regards. The only exception is that there is an implied freedom of political communication when referring to the government. However, this is a narrow interpretation and is almost always used in circumstances when discussing political parties. This right is intended to protect against things such as defamation.
Therefore, employees can celebrate their political views. But they are not completely protected in saying anything and everything they wish. And must stay vigilant in being culturally respectful to ensure others are not offended.
What do I do if I’m dismissed?
There are many steps and considerations when an employee is terminated to ensure it is procedurally fair and legal. The employee must be told of the reason for their termination, allowed a support person, and it must be for a legitimate reason.
Clearly to terminate an employee due to their political beliefs is not a legitimate reason. And an employee who is discriminated against in that manner is eligible to lodge a claim with the Fair Work Commission. However, the claim has to be lodged quickly as there is a maximum of 21 days (from the date of termination) before the employee is no longer able to lodge a claim. Only in exceptional cases will an exception be made.
If there is a dismissal then the Applicant can lodge an Unfair Dismissal (Form F2) claim. This type of claim focuses on whether the dismissal was procedurally fair or if it was harsh, unreasonable, or unjust. Terminations that are based on discriminatory motives are inherently unfair, harsh, and unjust. Employer’s have become more subtle in their discriminatory practices. Therefore, the biggest hurdle will be to connect the discrimination to the termination itself.
There would have to be no outside factors that would reasonably result in a termination and was coincidentally timed. Such as ongoing poor performance, unexplained absences, or derogatory and discriminatory comments.
It would be lawful to terminate an employee, not for celebrating Australia Day, but (for example) making racist or derogatory remarks about Indigenous Australians in the workplace. In that circumstance the employee is not being treated worse for their political opinions. They are facing the necessary consequences of discriminating against others based on their race.
Discriminated and still employed?
If an employee has not been terminated but continues to be treated less favourably due to their political opinions then they should not suffer in silence. Opinions on Australia Day is typically a topical discussion, however ongoing and evolving acts of discrimination are not uncommon. In this case it is recommended to make a complaint about the behaviour to a more senior employee. They should have the authority to escalate the matter.
If the behaviour continues and the employer has not sufficiently addressed the problem then the employee may be eligible for a General Protection (Form F8C) application. This form allows matters to be heard while the employee is still with the company. The remedies can be varied, including financial compensation or changes to job description.
Should employees be forced to work on Australia Day?
For many employees Australia Day is a public holiday where they do not have to work, or have the option of working or not. However, for some, particularly in retail, they are forced to work and are not given the opportunity to participate.
Some employees may feel upset by working, and it can be argued Australia Day is a cultural day for all types of Austraians to show their pride and patriotism. And that employers should be more culturally sensitive. Encouraging employees who want to participate to arrange flexible working arrangements, annual leave, or organise half days.
On the other hand, for some employees not being allowed to work and conduct their day as normal may be culturally insensitive. Insensitive to Indigenous Australians and other employees who feel as though watching other people’s celebration is disrespectful to their heritage. A similar argument can be said for placing Australian Day decorations or organising a specific festive work event.
For employees who do feel uncomfortable having a day off, some decide to participate in rallies, protests, indigenous events, or support only indigenous stores. Where an employee may not be celebrating in the strict sense, but supporting a cause they feel is important to them.
Due to the divisiveness of the topic, many consider the best course of action is to allow employees (when possible) the choice to work, celebrate, or conduct the day as they wish. What is most imperative is that employees remain respectful on the 27 January, or next working day.
Dismissed for political opinion
As an example of political views, SBS journalist Scott McIntyre was terminated after he had written controversial opinions regarding ANZAC Day. A day similar to Australia Day due to its divisive history and public holiday attributes.
The SBS employee was terminated the day after he published online statements on Twitter. The statement was regarding the brutality of the war and Australia’s involvement. While some argued his comments were objectively true, the point of view sparked a lot of backlash from online commenters.
The employee had filed a claim against his previous employer for discriminating against his political opinions. His lawyers supported that it did not matter whether his views were correct, but that the employee should not have faced adverse action for expressing his political view.
However, the employee faced difficulties in his state of New South Wales. It is one of the only states that does not have laws stating that it is unlawful to discriminate against a person on the basis of their political opinion. Therefore, the employee had only focused on disputing his termination on the grounds that it was unlawful and unfair.
The case was heard in a three day hearing with the New South Wales Federal Court. However, the final terms and conditions of the case have remained confidential.
Key takeaways to sharing your opinion on Australia Day
This example highlights how employees may be adversely affected when they speak their political views. Particularly openly controversial political opinions. However, the case also highlights that employers, even if they do not support an employee’s political beliefs, must follow procedural fairness if they wish to terminate the employee. Employees are not allowed to terminate employees for any reason, and whenever they like. Otherwise no employee would have any job security.
Importantly, toxic workplaces will not be considerate of their employees personal and political beliefs. Regardless if the beliefs directly affect the company, if they’re said sensitively to other cultures and opinions, or come from someone educated on the topic. If an employee feels as though they cannot express any or all opinions without shame, ridicule, or backlash, then they may consider finding alternative employment. Employers do exist who respect all their employees’ different backgrounds, cultures, and opinions.
Have you experienced adverse action or discrimination?
If work has changed for the worse since you have talked about your political opinion, sexual orientation, or pregnancy then you may be a victim of adverse action and discrimination. We are motivated advocate for equity and safety in workplaces across Australia. Even though we are not lawyers our team of workplace experts is committed to fight for your rights. A Whole New Aproach p/L is the nations leading workplace representatives and commentators. If you have encountered an unfair dismissal, workplace harassment or discrimination, call us today.
Our services are in high demand, and we provide completely free initial consultations for whatever problems you may have. With over three decades of experience, our team is exceptionally well-equipped to navigate the legal intricacies of your case.
Contact us at 1800 333 666 for a confidential consultation on how we can help you.
Similar articles to: Can having an opinion on Australia Day leave you sacked?
How do i make a unfair dismissal application
Freedom of Opinion Should I be Dismissed For them?
