Every Australian worker has the right to freely express their political opinion without facing dismissal. However, context matters. If you violate your employer’s policies or the law by doing so, you could face a fair dismissal.
This was the case in a recent unfair dismissal claim heard by the Industrial Relations Commission of NSW. It involved a paramedic who flouted self-isolation rules to attend an anti-lockdown protest. And not only did she attend, the paramedic also live streamed the protest on TikTok, which generated significant media attention for her inflammatory comments about police and the COVID-19 vaccine. Let’s take a look at the interesting events of this unfair dismissal case – John v Health Secretary in respect of the Ambulance Service of NSW [2023].
Paramedic is dismissed for joining protest and live streaming on TikTok
Since 2005, 52-year-old Sally-Ann John had been working as a paramedic at Ambulance Service of NSW. But in 2021, her employment was placed in peril by her actions at the height of the COVID-19 pandemic. On 13 July 2021, Ms John was exposed to a positive COVID-19 case and was therefore required by law to self-isolate for 14 days. A manager at NSW Ambulance spoke with Ms John to ensure she understood that she could not leave her home unless for further testing.
However, just over a week after becoming a close contact, Ms John decided to do something that would eventually lead to her dismissal. On 24 July 2021, she attended an anti-lockdown protest that took place in Sydney’s CBD. In her unfair dismissal claim, Ms John told the Industrial Relations Commission of New South Wales that she had not originally intended to attend the protest. However, she decided to go so that she could support her husband, whose business had been negatively impacted by the NSW lockdown.
“F*cking pigs!” employee makes offensive comments during TikTok live stream
Ms John had not only taken part in the protest, but also live streamed her participation on TikTok. She had done so using an account that identified her as a paramedic. And during her live stream, Ms John made a number of inflammatory statements to her audience about lockdown measures, the police, members of the public and COVID-19 vaccines. This included:
- That the police attending have “turned this peaceful protest into sh*t.” She referred to them as “F*cking pigs!” and claimed that their “heavy handedness” was “just bullsh*t.”
- That the COVID-19 lockdown was “not the way to go” and that it was “dictated by [the] higher ups.”
- That “everyone should just come around and come in front the back of the police and just push them along.”
- That “the coppers are sh*tting themselves” and that “they’re totally f*cking outnumbered.”
- Upon the police directing protesters to return home, saying “You fucking go home.”
- Lambasting those who were not attending the protest by saying “You f*cking arseholes sitting on your arse there in front of the computer. Doing f*cking jacksh*t and taking the f*cking vaccine. No we won’t go home. We are home.”
- That “all you people saying go home…psshtt, youse got no idea. You’ve been brainwashed. Youse are all brainwashed.”
- Lambasting all those who had taken the COVID-19 vaccine, saying “you people, you sheep who like to lap it up. ‘Oh I’m going to get my vaccine’. Yeah right, it’s not even a vaccine. You should do your research.” (Sic)
Ms John’s actions attracted much media attention and even resulted in members of the public and fellow paramedics writing complaints to NSW Ambulance. On social media, too, many called for her to be dismissed.
“I f*cked up:” Ms John admits she made a mistake
While Ms John very passionately aired her opinions at the protest, later that day, she realised that she made a very big mistake. Ms John called her supervisor and told him that she had “f*cked up.” She explained that she had “uploaded stuff to [her] TikTok account.” And that “someone [had] taken it upon [themselves] to share it all over Twitter.”
Some members of the public had reported Ms John to the police. And she was later charged with failing to comply with the COVID-19 public health order. Ms John pleaded guilty to the charge and was given a 12-month conditional release order.
Ms John is suspended then dismissed by NSW Ambulance
Six days after the protest, on 30 July 2021, Ms John was suspended with pay while NSW Ambulance conducted a workplace investigation. On this day, she also had her registration as a health practitioner suspended by the Paramedicine Council of NSW. The workplace investigation resulted in seven allegations of misconduct made against Ms John, which she received in writing. Her conduct had violated several workplace policies, including the NSW Health Code of Conduct and NSW Ambulance Social Media Operating Procedure.
In her response to the allegations, Ms John admitted that they were true and expressed remorse for her conduct. She also admitted that it was her voice on the videos and recordings that had been attributed to her. On 17 March 2023, NSW Ambulance dismissed Ms John.
Employee makes her unfair dismissal case to the Industrial Relations Commission
In her unfair dismissal claim, Ms John admitted to the Industrial Relations Commission of New South Wales that her conduct amounted to misconduct. However, she argued that her participation in the protest was “an error of judgement” rather than “a defect of character.”
Ms John also cited several mitigating circumstances that she believed influenced her decision to take part in the protest. This included that she had been suffering the effects of a serious back injury and was experiencing adverse side effects to menopause medication. Ms John also said that she had to care for her terminally ill brother and that she was under financial pressure caused by her husband’s struggling business.
Ms John also expressed her remorse for her actions, in particular, about what she had said during her TikTok livestream.
“I sincerely apologise to the Police and the public for the inappropriate language I used during the TikTok live stream,”
Ms John (employee)
she told the Industrial Relations Commission.
“It was very uncharacteristic of me as I have always had the utmost respect for the Police and the work they do for our community.”
Industrial Relations Commission rules on the unfair dismissal case
The Industrial Relations Commission acknowledged Ms John’s admissions of misconduct and the severity of her actions. However, her participation in the protest while under a self-isolation order, along with the offensive comments made during the livestream, weighed heavily against her.
“…at the time she attended the protest, Ms John was required to self-isolate,” said the Industrial Relations Commission said. “The evidence is clear that she was aware of this obligation but chose to ignore it.”
Ms John’s violation of self-isolation rules were not the only factor working against her during her unfair dismissal hearing. The Industrial Relations Commission also highlighted the damage caused by her comments made during her live stream regarding the COVID-19 vaccine and the police.
During cross-examination, Ms John admitted that the policies of NSW Ambulance and the Australian Health Practitioner Regulation Agency required her not to “undermine the national immunisation program.” It was also noted that Ms John had made an “incitement of violence” toward police. And that this “might make it difficult for police officers to feel comfortable working with her in the future.”
Employee’s behaviour is further criticised
On top of these findings, the Industrial Relations Commission agreed with the argument of NSW Ambulance that with respect to Ms John’s live stream, “[i]t is difficult to imagine a more serious case of misuse of social media”. It was also found that Ms John had failed to notify NSW Ambulance that her registration as a health practitioner had been suspended by the Paramedicine Council of NSW. This was a breach of her obligations to NSW Ambulance.
The Industrial Relations Commission recognised that Ms John had expressed contrition for her actions. However, it also took into account some worrying comments she made in her unfair dismissal claim. This included that paramedics are not able to keep up with organisational policies because they are “under a pile of red tape and paper.”
She said that “paramedics are out there just earning a living” while managers are “sitting in an air-conditioned office all day” with “absolutely no idea” if employees are reading all the policies that are emailed to them. Considering these comments, the Industrial Relations Commission doubted that “Ms John would abide by NSW Ambulance policies and procedures were she to be reinstated.”
Employee’s unfair dismissal claim is dismissed
The Industrial Relations Commission acknowledged the good character references Ms John had submitted with her unfair dismissal claim. Also, her statements regarding the “profound effect” that her dismissal has had on her mental state and financial position.
However, the Industrial Relations Commission ultimately found that her dismissal was not harsh, unjust or unreasonable. It was found that Ms John’s dismissal was not disproportionate given the seriousness of her actions and the potential harm to the reputation of the NSW Ambulance Service. Ms John’s unfair dismissal claim was therefore dismissed.
This case highlights the significant impact of social media on workplace conduct and reputation. Ms John’s live stream, which identified her as a paramedic, not only exposed her employer to public scrutiny and criticism. It also saw her violate key workplace policies that made her dismissal fair and reasonable.
Employers increasingly monitor employees’ social media activity to protect their brand and uphold their reputation. Employees must be mindful of their public behaviour and refrain from engaging in conduct that may reflect negatively on their employer.
Freedom of expression in the workplace – What the law says
The Fair Work Act 2009 contains protections that allow employees to express their political opinion or personal views. The General Protections provisions outline 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 has expressed a political opinion. The Fair Work Act states that an employer must respect the rights of an employee to exercise their political opinion. This means that not only are employees legally entitled to express their political, socio-political or moral attitudes. But they are also free to be a member of a political party.
However, there are limits to such freedom of expression in the workplace. An employee can face a fair dismissal if their political opinion violates their employer’s workplace values or policy. Also, if their pollical expression leads to the harm of others, or if they take part in politically motivated acts of violence.
Have you been unfairly dismissed?
Are you a victim of unfair dismissal, harassment or bias at your workplace? At A Whole New Approach, we are strong advocates for fairness and safety in workplaces all over Australia. Our dedicated team of workplace specialists is passionate about fighting for your rights if you have experienced unfair dismissal, workplace harassment, or discrimination.
Having successfully handled more than 16,000 employee claims across all states in Australia, we have earned a reputation for holding employers accountable. Our services are highly sought-after, with approximately 120,000 online enquiries annually, and we offer completely free consultations. With over 30 years of experience, our team is well-prepared to navigate the legal complexities of your case and work towards obtaining the maximum compensation for you. We work on a national basis, including, Victoria, NSW, QLD.
Do not let unfair treatment jeopardise your professional future.
Reach out to us at 1800 333 666 for a confidential consultation, and let us help you reclaim the justice you rightfully deserve.
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