The COVID-19 pandemic, the 2020 US Election, climate change, Black Lives Matter protests — there is so much going on! 

It is highly likely that many of your employees will have an opinion on the current state of affairs.

Your employees’ political views may be impacting the culture in your workplace or perhaps negatively representing your business on social media. 

So, can you do anything about your employees expressing their political views? 

Read on to find out.

Right To Freedom Of Opinion And Expression 

In Australia, there is no Commonwealth legislation containing a general right to freedom of expression. 

However, the High Court of Australia has acknowledged that Australians have an implied freedom of political communication through the Australian Constitution. 

What this means is that Australians have a general implied freedom to express their political views. 

So, does this mean that your employee can do whatever they want to express their political opinion? Not quite. 

Restrictions on political communication still exist. 

For example, under the Criminal Code 1995 (Cth), using violence to express a political opinion is an offence.

Employees’ Protection Against Discrimination 

Under the Fair Work Act 2009 (Cth), employers are prohibited from discriminating against employees for expressing their political opinion. 

A political opinion includes: 

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

However, the Fair Work Act 2009 (Cth) also states that where an employee’s views or opinions are ‘unauthorised and inconsistent’ with the employee’s role or the organisation’s values, then the employer may take action. 

For example, Michaela Banriji, a former public servant for the Department of Immigration and Border Protection, was dismissed after posting a tweet criticising the Department of Immigration and Border Protection immigration policies. 

Ms Banriji argued that this infringed on her implied right of freedom of political communication as well as her right not to be discriminated against for expressing political opinion. 

However, the High Court held that because Ms Banriji’s political opinion was directly contrary to the department she was serving, her dismissal was appropriate. 

Further, the Australian Fair Work Commission states that if an employee expresses their political opinion, they are protected against adverse action in their workplace. 

However, this protection does not extend to politically motivated acts of violence. 

Acts of violence may include: 

  • Rioting 
  • Physical harm 
  • Threats of coercion

So, What Does This Mean For Small Business Owners? 

Put simply, if your employee wishes to express their political opinions, they have a general implied right to do so. 

However, if your employee expresses their political views in a violent manner, or in a way that is contrary to your employees role or your business’ values, then perhaps action can be taken. 

What If My Employee Is Making Controversial Political Statements In The Workplace?

Perhaps your employee is making controversial political statements in the workplace and it is throwing your business’ workplace culture out of whack. 

Here, it is really important to consider: 

  1. What political statement are they making? 
  2. How are they making this political statement?
  3. Is this political statement ‘unauthorised and inconsistent’ with the employee’s role or your business’ values?
  4. Is this political statement being expressed in a violent way? 

Applying the law, unless your employee is expressing their political opinion in a violent manner or contrary to their role or your business’ values, then they maintain an implied freedom to communicate their political opinion in the workplace. 

Whilst you may not be able to take adverse action, it is important to consider positive mechanisms you can put into place such as: 

  • Emphasising respect in the workplace 
  • Encourage your employees to be understanding to other employees’ beliefs and ideals
  • Redirecting focus to your employee’s role in your business 

My Employee Is Posting Questionable Stuff Online, What Can I Do?

If your employee is posting questionable content online, it is again important to consider: 

  1. Is the post ‘unauthorised and inconsistent’ with the employee’s role or your business’ values?
  2. Is the post being expressed in a violent way? 

In 2018, former Tasmanian government relationship manager for Cricket Australia, Angela Williamson, was dismissed from her role following tweets made expressing her political view on Tasmania’s abortion services. 

Cricket Australia claimed that Angela WIlliamson was dismissed for neglecting key requirements of her role to facilitate a strong relationship with the Tasmanian Government. 

In response, Angela WIlliamson aimed to sue Cricket Australia, claiming that she had been unfairly dismissed in accordance with the Fair Work Act 2009 (Cth)

In the end, both Cricket Australia and Ms Williamson opted to avoid costly legal bills and settled outside of Court. 

Similarly, Israel Folau claimed unfair dismissal after his contract with Rugby Union Australia was revoked following expressing his views on same-sex relationships via his personal social media. 

In both of the above instances, the employer was under the impression that their employee was acting in an inconsistent manner to their role or the organisation’s values when expressing their political views on their personal social media pages. 

With these cases in mind, it is clear that dismissing an employee for their political views can get a bit complicated.

This is why understanding the law and encouraging appropriate political communication can be really helpful. 

As a small business owner, it is important to be mindful that your employees have an implied right to be free to communicate about their political views. Taking action against an employee for expressing their political view on social media that is not expressed violently is not an option. 

However, if your employee is posting ‘unauthorised and inconsistent’ content with their role or your business’ values, then perhaps action can be taken. 

Need More Help? 

Living in such controversial times can lead to an influx of political opinions in the workplace. 

Knowing in what instances you can and cannot take action against an employee for expressing their political views is really important. 

If you need more help, it may be a good option to speak with a lawyer. 

Reach out to our team for a free, no-obligations chat at team@sprintlaw.com.au or 1800 730 617.

About Sprintlaw

Sprintlaw is a new type of law firm that operates completely online and on a fixed-fee basis. We’re on a mission to make quality legal services faster, simpler and more affordable for small business owners and entrepreneurs.

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