On 1 June 2021, a woman who breathed on a camera crew at a Melbourne protest has been sacked from her job in aged care with her actions deemed “unacceptable”.
On Saturday 29 May 2021, a large group of anti-vaccination and anti-lockdown protesters gathered at Flagstaff Gardens in the CBD of Melbourne, which was on the second day of Victoria’s lockdown. As police officers tried to move the protesters on, one woman was dragged away after she breathed on a camera crew. It was later revealed the woman worked for Baptcare Aged Care.
Following the protests, Baptcare put out a statement saying the employee’s behaviour did not match up with its core values and the woman is no longer an employee of the organisation. Further, Baptcare stated that they do not condone the actions of this employee, which were unacceptable, and out of step with their expectations as an employer, and the expectations of the community more broadly.
In light of this news report, many employees are now wondering whether they can be terminated for attending any sort of protest and whether this out-of-hours conduct is a valid reason for dismissal?
Can I attend protests during work-hours?
Throughput the years, many people have attending protests and rallies regarding climate change. There have been overwhelming environment concerns that the public has and what appears to be relative inaction by the government, many feel that they have no choice but to head to the streets to protest. From school children to CEO’s, individuals have turned out in droves – but what happens if a protest is scheduled during working hours? Does your employer have any power to stop you from going? In 2019, the Fair Work Ombudsman has warned people they can’t simply not show up to work in order to attend planned climate protests across Australia.
Legally, it has been recognized by Australian common law that the citizens of Australia have the right to participate in public assemblies of their particular concern or interest. The right to assemble is codified in the Summary Offenses Act of 1988. Such right is also expressly stated in the Peaceful Assemblies Act 1988. However, such public assemblies are governed by laws which are meant to ensure that such events are peaceful and do not erupt into violent emotional displays of interest.
While the personal right to assemble exists, it does not necessarily transcend a person’s obligation to their employer during working hours. As such, the Fair Work Ombudsman has issued a statement to all Australian citizens that you cannot simply leave work, or not show up for work, to attend a public protest pertaining to your particular beliefs or interests. The law is clear, persons wishing to be absent from work to attend to a personal situation or interest, must give their employer notice of the absence and receive permission for the same. You then must use your own personal time or holiday time to attend the event. In addition, it is important to check the personal policies of your particular employer.
If your employer has set out the proper manner in which to request personal leave, you must adhere to their policies. In the event that an employee does not follow the procedural requirements of their employer, for the taking of personal leave to attend a public protest, the same employer-driven sanctions can be levied against the employee as in any other personal, vacation or sick leave occurrence.
Are my rights protected in the workplace?
Some employees may argue that their right to protest may fall under industrial action, but it has been held unlikely. Under section 19 of the Fair Work Act 2009 (Cth), industrial action means action of any of the following kinds:
- the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice which results in a restriction, or limitation on, or a delay in the performance of work
- a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee
- a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work, or
- the lockout of employees from their place of employment by the employer.
Industrial action does not include the following:
- action by employees that is authorised or agreed to by the employer of the employees
- action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer, or
- action by an employee if:
- the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and
- the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
Unions will often argue that a public political rally doesn’t have an “industrial” character because it isn’t about the relationship between the employer and its employees – there is no demand made by employees or the union that the employer can satisfy. There are some cases where the courts have held that behaviour is not “industrial action” if there is no “industrial” motivation. A union may rely on this to say that an employee walking off the job to express a political opinion cannot be “industrial action”, even when organised by a union.
Helpfully, the Fair work Commissions predecessor tribunal and the Federal Court have both held that leaving work to attend a political protest can still be “industrial action”. There is no broad exception which applies to a rally because it is occurring in a “political” context. The FWC will always examine what has occurred in each case to see whether it meets the definition of “industrial action”.
However, the employer’s position will be stronger if it can show that the union has sought to negotiate any industrial issues in the same context – for example, if there has been a request that the employer release staff to attend the protest, provide transportation, and/or pay the absent employees’ wages for all or part of the lost time. This will make it easier to show that the action being taken by employees has taken place in the context of a demand made of the employer.
Important lesson for employees
If you do decide to attend a protest, it is important to remember to be respectful at all times and follow the directives of police officers or crowd control authorities. In the event that you are caught on camera behaving in a certain way (i.e. the woman breathing on camera crew during the anti-lockdown protest), bear in mind that employer may not be impressed with your actions and it is clear that despite being off-duty, your actions may reflect poorly on your employer. As a result, it is not uncommon for your employer to see your actions in a poor or negative light. If the employer believes that your actions have harmed or risked their reputation, an employer may have a valid reason to dismiss an employee.