When tragedy becomes an employment matter
Amidst the tragedy and controversy of Charlie Kirk’s death, emerges an unexpected problem within the workforce. As expected, people have swarmed the internet with their opinions and conspiracy theories. Some posts are clearly political, while others are expressing their emotions and feelings on the matter.
The consequences of these posts are that now career professionals, are losing their jobs due to broadcasting their opinions online. Careers are being placed in jeopardy over matters that are irrelevant to the everyday Australian workplace.
What does freedom of political opinion really mean in Australia. Are these dismissals be legal under the Fair Work Act? By reading this article you’ll get a better understanding regarding voice in your complaints, your online conduct, and the security of your position moving forward.
SA Police officer under investigation
As the story of Charlie Kirk’s death has captures the world’s attention, Australian employees are being investigated, and potentially reprimanded, over their political opinions. One example includes a South Australian police officer. The officer is currently being investigated after uploading social media posts that allegedly celebrate Charlie Kirk’s death.
At this moment, not much information is known about the extent of which an investigation has taken place. Or whether the employee will undergo disciplinary action. The employee upholds that they did not create the posts but simply shared other existing stories. However, they have gone on to say that they are “clearly not mourning” his death.
The individual’s integrity will be questioned. Not just as an employee, but his responsibilities to his community and as a police officer. An officer who is meant to uphold a highest standard of integrity and trust amongst his community. There may be additional controversy regarding whether a police officer is allowed to have a public opinion regarding or promoting violence.
American Nurse dismissed after Charlie Kirk’s death
Many examples are coming from America. Employees are posting opinion, or stand up against other people’s opinions, and are being fired for doing so. One viral story includes a nurse who was supposedly fired after standing up against a doctor who was openly celebrating Charlie Kirk’s death in front of patients and colleagues.
The nurse was upset by the doctor’s actions; therefore she escalated the matter to managers and human resources. However, rather than dealing with the matter in a professional sense, they terminated her for making a complaint. The doctor was allowed to keep his job. The doctor admitted to making the comments and had tried to “smooth things over” by buying the floor lunch.
Is this legal in Australia?
If the termination were to happen in Australia, the act of dismissing the nurse would be illegal. Unlike in America, Australian employees are allowed to exercise their workplace rights (such as making a complaint relevant to their employment) without fear that they would be retaliated against (also known as ‘adverse action’), such as being terminated.
Under the Fair Work Act 2009, this is also called a ‘general protection’. These rights, or ‘protections’, are awarded to all Australian employees the moment they are hired. However, the ‘complaint’ does have to be relevant to the employee’s role or overall employment. A general complaint, such as complaining about traffic in the morning, would not elicit these ‘protections’ if the employee was subsequently dismissed.
Jimmy Kimmel cancelled talking about Charlie Kirk’s death
In recent news, famous talk show host and comedian, Jimmy Kimmel, and his show, has been pulled from air for an indefinite amount of time over his commentary regarding Charlie Kirk’s killer. This was decided after Mr Kimmel had suggested the Charlie Kirk’s killer may have been a pro-Trump Republican.
This decision was made after the head of the Federal Communications Commission, the American broadcast regulator, was outraged by the commentary. The decision highlights a more relevant and broader concern regarding an employer’s right to silence employees’ political opinions. Should an employer be able to do something similar?
Freedom of speech versus freedom of political speech
Unlike America, Australia does not have the freedom of speech. Instead, the only form of free speech that we do have is an implied freedom of political speech. This freedom has been enforced through the interpretation of our constitution. Typically, this freedom will arise around events regarding voting and the election of political parties.
However, this right also extends to the workplace. Employees are protected from being discriminated against due to their political opinion. Political opinions are characterized as a ‘protected attribute’, in a similar manner that gender, sexual orientation and race are protected.
The right to not be discriminated against is also included under the banner of a general protection under the Fair Work Act. What this means, is that employees should not fear retaliation (or being adversely affected) by their employer for having or expressing a political opinion.
Speech controversy
Where disputes may arise, is the confusion around “inappropriate use of social media” and conflict regarding what is exactly considered a ‘political opinion’. The protection of having a political opinion can also be limited depending on an individual’s role. Particularly roles involved with the government.
A political opinion is typically an opinion around the actions of the government, political party, or political individual. That opinion will criticise or praise certain pieces of legislation, reform, etc,. More common ‘political topics’ in the workplace may include opinions on recent legislation (particularly workplace legislation), or topics that may affect an employee’s personal life, such as housing or taxes.
For example, an employee should not fear losing their job because their employer found out that they support a different political party from them.
Charlie Kirk rose to fame within the context of politics. However, that does not automatically mean that every opinion of Charlie Kirk is inherently political. The lines are blurred regarding his death as the incident overlaps with a number of other topics that are also being discussed. Topics include violence, gun violence, murder, and assassination. It has been made clear that using politics to promote or motivate acts of violence will not be tolerated.
In the digital age, social media has blurred the line between private life and professional identity. Employees have to be cautious of what they post online, or what material they interact with, as it may affect their employment. An employer is allowed to consider an employee’s conduct outside of work in relation to any concerns regarding their employment.
The idea of being cautious online is not new as the idea of having a ‘digital footprint’ is common knowledge. Particularly in the context of prospective employers. The need or idea to have a “clean digital footprint” does not stop once employment has been secured.
This is most relevant for circumstances where the employee has breached a social media policy. Where they may have been wearing the company uniform and acted as a representative of the company. Or generally acted in a way that may cause reputational damage to the company.
These issues are more common in professions that deal with the community or are more heavily scrutinized than a ‘regular 9 to 5’. Such as teachers, police officers, healthcare, public servants, etc. Fortunately, we have case law that outlines the extent of the legislation and highlights warnings for employees and employers alike.
Stutsel v Linfox Australia Pty Ltd (2011)
Mr Stutsel, a long-serving truck driver, made offensive remarks about managers on his private Facebook account. The Fair Work Commission found the dismissal unfair because, at the time, Linfox had no social media policy. The comments were made with strong privacy settings and other staff who had engaged in similar conduct were not disciplined.
On appeal, the Full Bench confirmed the decision. Through this case, it is clearly warned that without clear policies and consistent treatment, dismissals for online posts risk being found harsh, unjust, or unreasonable.
Comcare v Banerji (2019)
By contrast, the High Court upheld the termination of a public servant who anonymously tweeted criticisms of government immigration policy. The Court found that although employees enjoy an implied freedom of political communication, that freedom is not personal in nature. It is a limit on legislative power, not a workplace shield.
In the public service context, neutrality and maintaining confidence in the APS outweighed Ms. Banerji’s right to express personal views. This case demonstrates that in certain roles, especially in government, restrictions on political speech can be lawfully enforced.
Pearson v Linfox Australia Pty Ltd (2014)
In another important decision, an employee refused to sign a social media policy on the grounds that it was unreasonable. The Fair Work Commission held that the dismissal was fair because employers can reasonably require compliance with social media policies where they protect legitimate business interests.
Overall, the law protects both parties. Employers who act consistently, rely on clear policies, and demonstrate genuine business justification can defend dismissals for social media misuse. However, when the real motive for termination is silencing complaints, suppressing political views, or punishing lawful rights, an employee may succeed in their claim. Whether in the context of an unfair dismissal application or a general protection claim.
Lessons for employees
Always question what you’re putting online. Double check that it’s something that you are okay with your employer or other colleagues seeing. If you believe that something may be controversial or that you’re not prepared to stand behind your online posts, then it probably should not be posted. For many people they would not willingly jeopardise their role and income over a single post.
However if you have posted something that your employer does not approve of, then it does not mean they necessarily have the right to automatically dismiss you. Employees who have passed a minimum period of service of six months (for a large business with more than 15 employees) or 12 months (for small business with less than 15 employees) are entitled to procedural fairness prior to any disciplinary action.
Procedural fairness
Procedural fairness includes the employer having to communicate what their concerns are. Then the employee is allowed a reasonable amount of time in order to provide a response to those concerns. The employer then has to genuinely consider their response and an appropriate outcome can be decided upon.
In some circumstances, the employer may ask for the post to be taken down, a warning might be issued, nothing happens at all, or the employee is terminated. The termination can only occur if there is a valid reason. An employer simply “not liking” the post is not a valid reason. However, there may be a valid reason if there are genuine reputational concerns. If the post is discriminatory or promotes violence or breaches a pre-existing and consistently enforced social media policy.
If an employee has been dismissed and it appears that there is no valid reason, then the employee may be eligible to lodge an unfair dismissal claim. However, be warned there is a strict 21-day limit in order to lodge the claim.
Lesson for employers
If an employer wishes to reprimand an employee due to their social media use, then they have to ensure that a proper policy has been established, is accessible to employees, and is enforced in a consistent manner. Furthermore, the policies itself must be reasonable and does not overextend into an employee’s liberties.
For example, it may be considered reasonable that an employee is not allowed to post online in their uniform unless approved by the company. However, it may be unreasonable to enforce that an employee must provide all passwords to their personal social media accounts.
If an employee has made a statement online but you do not agree with then it would be valuable and necessary to have a conversation with that employee prior to automatically considering termination or other disciplinary action. It’s possible for many issues to be resolved fairly quickly and easily when given the opportunity.
Furthermore. it is necessary that rules and policies are upheld the same standard for all employees regardless of the employer’s personal view on the matter. Therefore, an employee should not be reprimanded over an opinion if nothing they’ve done as breached workplace policy. Overall, it’s important to uphold consistency, transparency and trust.
Have your employment rights been breached?
Our team of highly experienced workplace mediators can help you take action through the Fair Work Commission. Call us as soon as you can, because you need to lodge your Fair Work claim within 21 days of being sacked. Your first consultation with us is free and confidential. Call us now on 1800 333 666.
We are not lawyers however we are the leading workplace experts in Australia. We have helped thousands of others to pursue their claims. If there is any unlawful behavior or discrimination in your workplace, including adverse action, get advice today.
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