Key issues
- How far can an employee go on their personal social media before it affects their employment?
- Can an employee express political opinion in a public forum?
- What is political opinion?
In recent times, employees have come under increasing public scrutiny for their comments on social media and whether they do or do not align with their employer’s (and to a wider extent the public’s) values. Whether those comments come from rugby superstar, Israel Folau, or TV personalities such as Roseanne Barr, the question still remains - how far can an employer properly go, for good reason, to try and regulate the conduct of their employees through workplace policies, outside of work hours?
Over the last week, there has been some publicity in Australia surrounding a Fair Work Commission claim against Cricket Australia (CA), made by a former employee who was sacked after making some comments on Twitter.
Although the dispute arises out of the use of social media, it could just as easily have arisen out of public statements made in other ways.
It does not appear to be suggested that the employee’s comments had anything directly to do with her job at CA, although her strongly worded and publicly expressed views clearly pitted her against certain elements of the Tasmanian Government.
Her employment was terminated on the basis that her tweets were ‘inappropriate’ and in breach of her employer’s social media policy. The tweets were said to be ‘fundamentally inconsistent’ with the requirements of her role to represent CA in the best possible manner to government and government agencies.
As general propositions:
- an employer can require their employees, outside of work or working hours, not to do anything that might damage the employer’s interests; and
- ultimately, conduct of that kind can provide a legitimate basis for termination of an employee’s employment.
But applying these principles to particular facts can be difficult. It is often more easily said than done to balance an employer’s legitimate interests, properly identified, against the private lives and activities of their employees. For employees protected from unfair dismissal, an employer who dismisses an employee based on something they said or did on their own time runs the risk of liability in an unfair dismissal claim.
In this case, those difficulties for CA are compounded by arguments that the former employee’s social media activity amounted to her expression of a ‘political opinion’, and; that her dismissal amounted to unlawful adverse action under the Fair Work Act taken against her because she expressed that opinion.
The Act prohibits adverse action, including dismissal, against an employee ‘because of’ their ‘political opinion’, in the same way it prohibits adverse action taken because of such things as a person’s race, colour, sex, sexual orientation and so on. Contraventions can lead to significant outcomes, including orders for reinstatement and payment of compensation, with civil penalties or fines being a particular sting on the tail.
In some cases, it can be difficult to judge whether something said or done amounts to the holding or exercising of a ‘political opinion’. The concept is undefined except in case law. For example, it has been held to include the advocating for changes to the law, or, opposing particular public policies, but not the holding or promotion of a personal belief.
Political opinion cases are rare, but employers would do well to add ‘political opinion’ to the checklist of things to think about when assessing something an employee has said or done, whether or not in a working context, which might offend the employer’s expectations for appropriate conduct. In the not too distant past, a Queensland employer was ordered to pay $370,000 in compensation to an employee found to have been dismissed as ‘an act of political retribution’: Carey v Cairns Regional Council [2011].
Ultimately, the holding or exercise of a valid political opinion will, as a legally protected attribute, usually trump an employer’s expectations for certain standards of conduct or behaviour, but the involvement of a protected attribute is not the end of the issue in a case alleging unlawful adverse action. It must also be demonstrated that the employer’s action was taken ‘because of’ the protected attribute.
As another general proposition, an employer can fairly take to task an employee for ‘the way’ in which something is said or done, even if ‘what’ they said or did might have involved the expression of a political or other personal opinion.
If, in expressing a political opinion, an employee’s conduct is offensive or otherwise in breach of the employer’s policies, the employer may be able to show that related disciplinary action was not unlawful because, rather than being motivated by the fact of the opinion, they acted because of the employee’s offensive behaviour. This will be one of the disputed areas in this particular claim against CA. In the stated reasons for her dismissal, CA told the claimant that they had no issue with her expressing her political beliefs but, rather, were concerned with the ‘disparaging tone’ of her tweets.
If you are concerned about the content of your employment policies or contracts or for advice in managing an employee’s public statements or other conduct outside work, please contact HopgoodGanim Lawyers’ Workplace and Employment team.