Can You Be Dismissed? for Storming Parliament
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. 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.
Protection for political opinion
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).
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 dismissed were lawyers, professors and real estate agents. 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. Hence, there is a broader issue underlying all of this.
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.
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.
Protesting can be the excising of a workplace right. Is a fine line, be careful. Wearing the company uniform may be acceptable in these circumstances. The argument is it is a employer related activity. If the employee is dismissed there is a argument for the lodgment of a general protections claim (Form F8) for adverse action by the employer. In the new gig economy employees don’t protect like they did 20-30 years ago. Employees don’t seem to stand their ground anymore. There is tendency to move on by just changing jobs.
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. 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.
Social media and dismissal
Can You Be Dismissed? for Storming Parliament, the role of social media. 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 all part of a community, we cannot live and operate with immunity. Reputational damage to companies and individuals is under estimated. Social media posting do not simply disappear. Employees have rights, just be careful how you excise them.
Conclusion to Can You Be Dismissed? for Storming Parliament
Can You Be Dismissed? for Storming Parliament, great article, certainly keeps the debate alive. 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 and Fair work Australia matters, unfair dismissals, general protections, redundancy issues., workplace investigations, nothing is a trouble for us. concerned about workers rights?, casual employment status, call now
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