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Dismissed for expressing personal views

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Dismissed-for-expressing-personal- views.-casual-conversation-can-lead-to-dismissal
What can start as a casual conversation, can get out of hand. Nobody backs down. In turn can lead to someone’s dismissal.

Dismissed for expressing personal views

There have been many cases of Australian workers being dismissed for expressing a personal view, a political opinion or even making an inappropriate joke. Some of these were found to be unfair dismissals by the Fair Work Commission (FWC), while others were upheld.

The fact is that while the Fair Work Act 2009 does provide employees with protections to express their political opinion or personal views, there are limits to what you can say in the workplace. The policies of your workplace – whether it is an office, factory or restaurant – also factor into what you can say. As does whether your views or opinion have a harmful effect on others.

In a case heard by the Fair work in July – Paul Kallipolitis v Australian Postal Corporation [2022] – an employee was dismissed after spreading COVID-19 conspiracy theories at work. Let’s look at the events of the case and how the Fair work Commission came to a ruling.

Australia Post worker spouts conspiracy theories to customers

In 2021, a Sydney-based delivery driver landed in hot water with his employer, Australia Post. This took place while COVID-19 restrictions where in place across New South Wales. While attending the back dock of a JB Hi-Fi store, the delivery driver had refused to wear a mask and didn’t sign in with a QR code. He also engaged in a discussion about COVID-19 conspiracy theories with JB Hi-Fi staff.

The delivery driver receives a complaint

JB Hi-Fi soon made a complaint about the delivery driver, and he was instructed by Australia Post not to return to the store. Initially agreeing to that directive, the delivery driver returned anyway. And when he got there, he refused to wear a mask once again, and demanded to know who made the complaint about him.  

The delivery driver then started going off on a tangent, expressing numerous conspiracy theories. He told JB Hi-Fi staff how he doesn’t watch mainstream media because it is all “bullsh*t.” He also spoke about the conspiracy surrounding Jeffrey Epstein’s death.

After the JB Hi-Fi store manager issued another complaint to Australia Post, the delivery driver was told by his manager not to drive his van. He was also placed on other duties while a formal investigation took place. The delivery driver, however, didn’t react with compliance. He demanded “I want the complaint in writing,” and that if he didn’t receive it, that his manager was “lying.”

watch-what-you-say.-Don't-end-up-dismissed
Watch what you say. Its not that hard to offend somebody these days. Don’t end up dismissed over what was originally a minor issue.

A tense stand-off between the delivery driver and his manager

The delivery driver then grabbed the key to his van and entered the vehicle. As he drove off, his manager and another employee followed. The delivery driver then lowered the window and demanded once again “I want it in writing.” His manager said that if he drove off, he would notify the police.

The delivery driver then drove onto the road, and his manager and the other employee attempted to block his way. Seeing that the delivery driver was driving much faster than the 5km per hour speed limit, they soon jumped out of his way. The manager then said, “fine, do your run,” and the delivery driver sped off.

Delivery driver is dismissed for serious misconduct

The delivery driver then drove to Australia Post’s distribution centre, where the centre manager informed him that he had been suspended. He then used his own car to drive to the JB Hi-Fi store, and once again began spouting conspiracy theories about COVID-19.

After Australia Post completed its investigation into the delivery driver’s behaviour, it found that he had repeatedly failed to follow lawful and reasonable directions. He was subsequently dismissed for “serious and willful misconduct.” He soon after made an unfair dismissal claim with the Fair work Commission.

The delivery driver attempts to have his unfair dismissal overturned

At his Fair work hearing, the delivery driver argued that he had a medical exemption to not wear a mask. He also said that he did not use the QR code to sign in because he hadn’t physically entered the shopping centre in which the JB Hi-Fi store was located.

The delivery driver argued that there was no evidence that he had discussed COVID-19 conspiracy theories. However, if Australia Post could provide evidence that he had, the delivery driver argued that it was “hard to see how that could be some form of misconduct.”

He also said that there was no suggestion that he was “proselytizing a particular point of view which may have been objectionable.” Also, that “mere discussion would seem to be unexceptional, regardless of a person’s viewpoint.”.

Everybody-wants-a-say.-You-are-entitled-to-your-views.-Just-be-careful- how,-when-and-what-you-express
Everybody wants a say. You are entitled to your views. Just be careful how, when and what you express.

The FWC makes its ruling on the unfair dismissal case

The crux of this unfair dismissal case was not that the delivery driver had spouted conspiracy theories in the workplace. Nor that he had flouted COVID-19 restrictions, which Commissioner Alana Matheson said “could’ve been managed” by Australia Post. Rather, it was that the delivery driver had willfully disobeyed directions from his employer.

Commissioner Matheson found that these directions were “lawful and reasonable.” She said that the seriousness of his misconduct was compounded by returning to the JB Hi-Fi store after his suspension.

“The facts are that [he] was told not to return to the JB Hi-Fi store and not to talk to JB Hi-Fi staff members about the complaint yet he did so, not only once after being told not to, but again by his own admission”.

Commissioner Matheson member of the Fair work Commission

She ruled that in failing to comply with lawful and reasonable directions, the delivery driver’s dismissal was not harsh, unjust or unreasonable – the criteria by which a dismissal is ruled as unfair.

“In all the circumstances, I have formed the view that the decision to dismiss the [driver] was not a disproportionate one,” said Commissioner Matheson.

Are there laws that protect freedom of expression in the workplace?

The Fair Work Act does provide protections for employees when expressing personal or political views in the workplace. These are contained in the General Protections provisions, which state that it is unlawful for an employer to take harmful action against an employee for certain prohibited reasons.

One of these prohibited reasons is if an employee expressed a political opinion. The Fair Work Act states that an employer must respect the rights of an employee to exercise their political opinion, which is defined as:

  • Membership of a political party
  • Expressed political, socio-political, or moral attitudes
  • Civic commitment

However, if an employee can be fairly dismissed if their political opinion contravenes their employer’s values or policy. They can also face dismissal if they engage in politically motivated acts of violence.

Meeting-on-zoom.-Employees-are-express-stronger-views-because-its-not-in-person
Meeting on zoom Employees are expressing stronger views because its not in person.

Can you be dismissed for expressing non-political views?

The General Protections provisions also outline other reasons for which an employer can’t legally discriminate against or dismiss an employee. This includes doing so because of their race, sex, sexual preference or religion, among other personal attributes. A view or opinion expressed by an employee can potentially fall under one or more of these prohibited reasons. If it does, and they are discriminated against or dismissed, the employee may have a legal imperative to seek redress through the FWC.

If an employee is dismissed for expressing their views, but their views don’t fall under one of the General Protections prohibited reasons, they may be eligible to seek redress by making an unfair dismissal claim with the FWC. The success of an unfair dismissal claim will hinge on several factors, however. This could include if your employer has a policy in place that prohibits the expression of such views. Also, if the expression of your views damaged the reputation of your employer.

Be careful what you say in the workplace

Despite the aforementioned legal protections, it is important to remember that what you say while at work could get you in trouble. The success of General Protections and unfair dismissal claims hinge on a variety of factors, so it is not a certainty that you will win your case. You may not even be eligible to make a claim. (be aware of the strict 21 day rule to lodge a claim).

You must also consider the possible implications of expressing your views in the workplace. If your views could be interpreted as racist or sexist, for example, you could face consequences under federal, state or territorial anti-discrimination legislation.

You must also consider if your workplace has policies in place that prohibit certain forms of speech. For instance, making a course remark or joke could land you in hot water. This is what happened to a disability support worker in 2015, who was dismissed for joking about sexual assault.

In the unfair dismissal case – Hengst v Town and Country Community Options Inc. [2016] – the support worker’s joke was overheard by a colleague. This colleague reported the joke to their boss, who then confronted the support worker.

Despite offering “profuse apologies” to his boss, the worker was dismissed for inappropriate conduct. He subsequently made an unfair dismissal claim with the Fair work, and at his hearing, argued that the joke was a “slip of the tongue.”  The FWC accepted that the comment wasn’t intended to hurt, abuse or threaten anyone in particular. However, the worker’s claim was denied as the incident had eroded the foundation of trust between him and his employer.

Once-you-have-had-your-say,-you-cannot-take-it-back.-Get-help
Once you have had your say, you cannot take it back. Facing dismissal? workplace investigation?. Not sure where you stand, get advice.

Conclusion to Dismissed for expressing personal views

We get a lot of enquires regarding workplace behaviour that has in reality nothing to do with the workplace. Other than it happened in the workplace. What were once great places to work, end up as a toxic workplace.

Have you been treated unfairly for expressing your views?

If you have been treated unfairly or dismissed for expressing your personal views at work, A Whole New Approach can help. We are Australia’s leading workplace advisors and commentators, with over two decades’ experience assisting workers fight for their rights. Our team can help you understand if you can purse redress through the Fair work and provide you invaluable guidance throughout the process. All workplace investigations, forced to resign, adverse action. call now.

Call us on 1800 333 666 for a free, confidential discussion about how we can help you successfully claim compensation.  

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