Can I express my political opinions without being dismissed

Politics in the workplace can be complicated and awkward. There is constant ongoing domestic and international discussions that may make its way to the workplace. Often political opinions can spark debate and occasional conflict. So what can employees say and how does it impact your freedom of speech? 

Read the following article to learn more about how to navigate political opinions and conflict in the office. With some real life examples and cases to reflect on. 

Can I say I like Trump? 

Under the Fair Work Act 2009, employees cannot be discriminated against for expressing their political opinion (s 351). Furthermore, Australia does not have the right to freedom of speech as they do in America. However, the courts have upheld that the Australian constitution has an implied freedom of political speech. Therefore, anyone can discuss their political views without repercussions. 

Per the Fair Work website, “political opinion includes membership of a political party; expressed political, socio-political, or moral attitudes; or civic commitment”. Therefore, ensure any comments are actually political opinions prior to speaking otherwise severe repercussion may occur. 

Generally, anyone employed under a national system employer can say their political opinion and should not face repercussions. However, there are exceptions to this rule. The Fair Work Commission has warned that while political opinions can be shared, they cannot be used to motivate violence. Any form of violence is typically prohibited, and using political opinions to justify violence will not be accepted. 

We cannot support violence

In a similar manner, political opinions cannot be used to purposefully create hostility or a toxic work environment. This may be interpreted as a violent act and could lead to dismissal. Even if there was no strictly traditional physical violence involved. Eliciting or motivating violence through political views will not be protected. 

Due to these reasons it is typically advised not to discuss political views in the workplace in order to maintain respect and friendship. Which is typically harder to achieve once different opinions have been established. Especially something that can be as polarising as political opinions. 

While employees should not be penalised for discussing their opinions, there is no reason why employees should invite a reason for conflict. Especially as political opinions are often not relevant or permanent to completing their job. In saying that, if the discussion were to come up naturally and in a safe environment employees should not fear repercussions for their political opinion. 

Not everyone has the right to freedom of political speech

In addition to circumstances of violence, the Fair Work Commission has allowed employers to take action when political views are ‘unauthorised and inconsistent’ with the employee’s role or the employer’s values. 

Referring to a case from 2019, Ms Michaela Banriji, was a former public servant for the Department of Immigration and Border Protection. She was dismissed after posting a tweet criticising her department’s immigration policies. She had made the tweet on an anonymous account that did not affiliate her with her government department. 

Ms Banriji argued that the termination was a form of adverse action as she had been discriminated against for her political views. Furthermore, her implied right to political freedom was infringed upon. 

However, the High Court found that her opinions directly opposed the department that she worked for. The Court emphasized the importance of public servants being apolitical and impartial. Which Ms Banriji clearly was not. Therefore, her dismissal was appropriate. 

This case highlights concerns more relevant for political, government, or public servant positions. They have more stringent rules than regular employees. Regular employees are allowed to have different political views to their employer. However, it is advised for all parties, employer and employee alike, to keep political opinions private. 

Resolving internal conflict 

Not all employees will like each other. However, employees are expected to tolerate and respect each other. In some cases, conflict will arise from misunderstanding or once off incidents. In these circumstances it is usually expected for employees to communicate with each other and come to a reasonable understanding. This is a typical response of dispute resolution and is usually achievable. 

Unfortunately, some conflicts are more serious, and require intervention. If initial communication is not effective, it is usually advised that employees should complain to a senior member of staff. By escalating the matter to an appropriate employee the company can decide on how to move forward or to investigate the issue.  

 It is not advised for employees to “take matters into their own hands” or to respond to any conflict by themselves. The argument that ‘the other employee was disrespectful or violence first’ is not a sound argument to prevent termination if the matter escalates quickly. 

Therefore, by escalating the matter to the appropriate staff, the conflict is appropriately documented and the responsibility to resolve the conflict is within the employer’s hands. A number of options can occur after the complaint has been made.

The company may decide that the conflict is not of a serious nature and will talk to each or all parties respectively. However, no investigation would be escalated. On the contrary, if the employer feels as though the conflict may result in violence or jeopardise workplace culture they may choose to investigate and/or uphold punishment. 

Fair Work protects employee’s political opinion

Employees cannot be penalised for complaining or bringing up their concerns, or also known as adverse action. Particularly if it involves controversy for the sake of being shocking, rude language, bullying,  harassment, or feeling as though they are in an unsafe workplace. However, what the company can do about the matter may be limited. 

If an employee complains about a serious matter and then they are the ones who are punished or terminated, then they may be eligible for what is known as a general protections claim and under the Fair Work Commission. 

In a similar sense, if an employee is fired after speaking about their political opinion they may also be eligible for a general protection claim. Additionally, depending on their length of service and other factors,  they may be eligible for an unfair dismissal claim (F2). Both claims rely on the employee lodging their complaints within 21 days of their termination. 

Councilman terminated 

Cases of political discrimination are not common. The right to freedom of political speech and political opinion will typically triumph over an employer’s employment expectations. However, the following case highlights the power of political opinion and discrimination laws. 

The general manager of the Douglas Shire Council had brought forth a discrimination claim to the Queensland Civil and Administrative Tribunal against the Council after he was terminated while on leave. At the time of dismissal he was not given a reason why he was fired. 

The manager had lodged his claim on the basis that he had two close relationships with local political community members. One relationship involved the mayor of another Council who often opposed on political issues. the second relationship was his de facto partner who often supported the aforementioned mayor and was involved in political groups in their own right. 

The council denied the allegations and claimed he was terminated due to poor performance. The tribunal ultimately denied the council’s argument. Stating that there was evidence to support direct discrimination on the basic political belief or activity. The tribunal somewhat highlighted that the bar for what is considered political opinion or activity is relatively low. 

The case was also significant as the manager was awarded $368,033.06 in damages. Included loss of income, future loss of income, embarrassment, humiliation, loss of reputation, and medical expenses. 

Blowing the whistle on political opinions

In the case of Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587, two employees were unable to establish that they were discriminated against due to political opinion. Mr Quirk and Mr Miller were employees of the construction and general division of the construction forestry Maritime Mining and energy Union (CFMMEU). 

Without obtaining approval they had spoken out against the Union on ABC’s 7:30 Program and to a journalist from the Sydney Morning Herald. Due to their conduct the executives of the Union decided that both were guilty of gross misbehavior within the meaning of the Union’s rules and terminated them. 

Both employees had lodged a general protection claim within the Fair Work Commission. They claimed that the Union had taken adverse action against them because of their political opinion. Furthermore, arguing that they had a workplace right to whistle blow to the media. 

Court settles political opinion

The court had found that the statements made on the 7:30 Program were political in nature. However, the court did not agree that the employees were dismissed because of their political opinion. In turn, they were dismissed due to their perceived disloyalty in their action to speak to the media without having permission. 

The court did consider the relevance of the state in which the political statement was said in. Noting that in New South Wales there is no protection against discrimination on the basis of political opinion. In which if the Fair Work Claim were dismissed then state-based legislation would have to be considered to determine whether discrimination occurred. However, in the end the court did not have to consider to that extent. 

Furthermore, the court had upheld that employees do not have the workplace right to whistle blow to the media. The definition of workplace rights are not broad enough to include such provisions. Therefore, as no workplace rights were enacted, there could be no adverse action. It was noted that in some circumstances whistleblowing laws may intercept with Fair Work laws however it was not relevant for this case. 

Ultimately the decision to terminate the employees was fair. There was no discrimination found in the decision to terminate them, and there was no adverse action. 

Does my state matter? 

This case does introduce the issue of state-based discrimination laws. The discrimination laws under the Fair Work Act are only relevant for Fair Work Commission claims. However, not everyone is eligible to lodge a Fair Work claim. At a minimum, employees must be employed by a national system employer to be eligible. Where each state has their own rules and exemptions to what is a “national system employer”. 

In the case where employees cannot lodge a Fair Work claim, they would have to consider their state-based legislation. As mentioned, not all states protect employees’ political opinion. Where it is illegal to terminate a Victorian employee due to their political opinion, it is not illegal in New South Wales. Even in the case that the state does not protect against discrimination on political beliefs, it may still be beneficial to seek advice as the employer may have breached other contraventions. 

Protect your job, be smart

In most circumstances employees are protected and are able to say their political opinion without issue. Issues may arise when the employee works in a more political or government affiliated role. Where there are usually more stringent rules. Additionally, consider whether the employee is employed by a national system employer. In conjunction, whether they are protected under their state based anti-discrimination laws. Or whether the statement was made in a violent way, or in a way that would elicit violence. 

In most roles there will be no reason to mention political opinions. While there shouldn’t be a punishment for saying an opinion, it may cause accidental conflict. To limit conflict and promote unity and respect controversial topics are typically advised against in the workplace.

Regret expressing your opinions?

Our team at A Whole New Approach are highly experienced mediators who can help you take action through the Fair Work Commission. Note, we are not lawyers. We have helped employees for over 30 years.

If you have been unfairly dismissed, faced discrimination, adverse action or harassment, call us today. We understand the Fair Work Commission so you don’t have to.

Time is of the essence, as you only have 21 days from the date of your dismissal to lodge a claim. Call us on 1800 333 666 for a free and private discussion.

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