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Be careful where your “out of work” activities may leave you. Nothing wrong with being a person of principal, just be careful where it leave you

In January this year, Australians watched on, as Americans stormed the U.S. Capitol. As a result of the recent riots in Washington, certain employers have gone on to dismiss their employees for attending and being involved. [1] Its worth noting the USA does not have the unfair dismissal laws that we have here, but do have discrimination laws. The questions that needs to be asked are whether this is fair? And whether you are protected from dismissal in Australia for such a reason? Are Employers casting a moral view / decision versus a soundly based legal decision? Will this happen here?

In Australia, there is a common assumption that we have freedom of speech. This is not the case at all. The Australian constitution offers very few individual protections for its people. There is an implied right to freedom of political communication, however it does not protect an employee’s expression of political beliefs and thoughts. [2]

However, Australian law does provide protection to employees regarding political opinion. Under Section 351(1) of the Fair Work Act 2009 legislates that it is unlawful for an employer to discriminate and consequently terminate employment on certain grounds, one of these being a person’s political opinions and beliefs. However, there is one exception to this ground of discrimination, violence exercised on the basis of political opinion is not safeguarded by the Act as Australia is part of the labor standards agreement outlined by the International Labor Organization (a United Nations body). [3]

Many employers didn’t have to look far for evidence, with the employees posting images on Instagram and Facebook declaring their attendance at the riot. Many relatives and friends of the so called protectors have reported to the authorities who the protectors are. Amongst the terminated were lawyers, professors and real estate agents. [4] It wasn’t just lower ranked employees in the U.S who were terminated for storming the Capitol, CEOs from major data companies have also been dismissed. [5] Hence, there is a broader issue underlying all of this.

I’m writing this article to pose: Are our choices and actions in our private sphere, up for scrutiny by our employer to the extent of dismissal?

The test for serious misconduct is whether on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. [6] Out of hours conduct is a separate issue. An employer only has the right to extend any supervision over the private activities of the company in exceptional circumstances, where the conduct must have a relevant link to the company. [7]

Rose v Telstra is a pivotal case ,which recognized three categories of behavior that may comprise of out of hours misconduct. [8]
– The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or
– The conduct damages the employer’s interests
– The conduct is incompatible with the employee’s duty as an employee

This case involved a Telstra communications officer, who had an altercation with another employee while posted on work in another location. In this case, the company found out about the fight through a medical certificate provided to the company by a doctor. Rose was suspended without pay and later found guilty of improper conduct, which resulted in dismissal. No disciplinary action was taken against the other employee. [9]

For each of the three categories outlined in Rose v Telstra, there needs to be material evidence to demonstrate that the behavior of the employee has had an impact on the employer.

So you are entitled to protest and voice your opinions, however, this is limited to protest. The destruction of property and illegal activity is criminal, however, once again this is an interesting point of the law, because HEF of Australia v Western Hospital, found that out of hours conduct resulting criminal offences does not alone, suffice for dismissal. [10]

In this case, a police officer informed the hospital (the employer) that a number of employees were part of a gang and that their homes would be raided and they would subsequently be charged. The hospital dismissed the employees by stating that their behavior constituted serious and willful misconduct. However, as the police had not officially laid charges, it was found that the hospital did not have enough information at the time of dismissal and did not investigate the conduct themselves.

What about social media?

Well let’s say the out of hours conduct occurs digitally, you’ve made a Facebook post about a co-worker or the employer, putting the company into disrepute? This would amount to dismissal because there is a clear link. However, if you were to put up a post supporting a political view or belief, you cannot be dismissed unless there is a relevant link to the relationship you have with your employer and has impacted the employer’s interests.

As explained in Byrne v Australian Airlines, there has been a shift in law regarding the relationship of employment. [11] The “shift from status (master and servant) to that of contract (employer and employee)” has meant that in Australia, employers can only terminate employment for out of hours conduct if they can prove that the conduct of the employee has a direct impact or link to the employment. If this cannot be satisfied then the dismissal is unlawful.

Therefore, you can be dismissed for storming parliament house if it is a politically motivated act of violence as you will not be protected under the Fair Work Act. If there is no violence, but there is a relevant link that impairs your relationship with the employer, then you can also be lawfully dismissed.

Before the internet and social media, what you got up to on weekends or in holidays seemed / considered to be your business, now its out there for all to see. Employees can be the window face of the company, and a dismissal may apply. Whether that’s for good or bad is in the eyes of the beholder. There is no doubt good jobs are hard to get, employees should think twice before they possibly put it at risk. Principles and ideals are a great thing, beware what you might have to pay for them.

We are A Whole New Approach, we “live and breath” workplace stuff, we are not lawyers but the nations leading workplace advisors. Got a question?, want to know something?, make the call, send the email. All Fair work Commission matters, unfair dismissals, general protections, redundancy issues., workplace investigations, nothing is a trouble for us. call 1800 333 666, advice is free. We work in all states, Vic, NSW, Qld, SA, WA, Tas

[1] Elizabeth C. Tippett, ‘Fired for Storming the Capitol? Why most workers aren’t protected for what they do on their own time’, The Conversation, (online, 6 January 2021) <https://theconversation.com/fired-for-storming-the-capitol-why-most-workers-arent-protected-for-what-they-do-on-their-own-time-152963>

[2] Dan Trindade & Matt Condello, ‘The implied freedom of political communication does not help an employee who disagrees with their employer’s policies’, Clayton UTZ, (online, 28 September 2017) <https://www.claytonutz.com/knowledge/2017/september/the-implied-freedom-of-political-communication-does-not-help-an-employee-who-disagrees-with-their-employers-policies>

[3] Fair Work Commission (2018), <https://www.fwc.gov.au/general-protections-benchbook/other-protections/discrimination/political-opinion>

[4] Kate Duffy, ‘CEOs are firing employees who stormed the US Capitol after seeing theirphotos and videos on social media’, Business Insider Australia, (online, 9 January 2021) <https://www.businessinsider.com.au/ceo-fire-employees-storm-us-capitol-after-social-media-posts-2021-1?r=US&IR=T>

[5] Elizabeth C. Tippett, ‘Fired for Storming the Capitol? Why most workers aren’t protected for what they do on their own time’, The Conversation, (online, 6 January 2021) <https://theconversation.com/fired-for-storming-the-capitol-why-most-workers-arent-protected-for-what-they-do-on-their-own-time-152963>

[6] Edwards v Justice Giudice [1999] FCA 1836

[7]  Appellant v Respondent, Print R1221 (1999) 89 IR 407

[8] Fair Work Commission (2018) <https://www.fwc.gov.au/unfair-dismissal-benchbook/what-makes-dismissal-unfair/valid-reason/conduct#ftnref25>

[9]Rose v Telstra Corporation Limited, Print Q9292 .

[10] HEF of Australia v Western Hospital, (1991) 33 AILR 249.

[11] Byrne V Australian Airlines Ltd [1995] 185 CLR 410 [27].

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