Can Employees Be Sacked For Having Public Opinions?
The line between our private and working lives is becoming increasingly blurred.
Having an opinion is a right, but it seems making your personal opinion known may not be.
With social media now entrenched in the public domain, employers and industry tribunals are having to respond to more cases of employees publicly having an opinion. The line between work and private lives has become blurred.
Just this week Angela Williamson took legal action against her employer, Cricket Australia, after being sacked over a series of tweets about abortion rights in Tasmania.
Williamson tweeted pushing for the reform. She was then fired for those tweets several months later. With her tweets directly referred to in her termination.
“It’s a case, we think, of an employer going much too far,” her lawyer Kamal Farouque, an employment law specialist from Maurice Blackburn, told The Project.
So how far is too far?
Industrial tribunals have been assessing unfair dismissal cases regarding employees’ use of social media outside work for over a decade.
The public forum poses significant challenges, Dr Elizabeth Shi, from RMIT University’s School of Business and Law specialises in employment law, told ten daily.
“The challenge for the law is whether the types of comments made on social media potentially could breach an employment contract, and could potentially be grounds for disciplinary action by the employer,” she said.
This can rest on the organisation’s social media policy that qualifies unacceptable behaviours.
“If an employee is openly breaching the employer’s social media policy and making very disparaging comments that may damage the reputation of the employer, generally speaking, that would be a breach of their policy and of their contract,” Shi said.
“But it depends on the proportionality of the breach, how strong the evidence of misconduct is and how it impacted on the employer.”
Questions about an employer’s right to express their personal or political opinions are also legally dubious.
“There is no specific constitutional guarantee of freedom of speech in Australia,” Shi said. “At the end of the day, the boundaries are set by the employer.”
In Williamson’s case, the 39-year-old became one of the first Tasmanians forced to travel interstate for an abortion, after the last centre closed late last year. She was forced to take time off work and spent thousands on the procedure.
The choice to later tweet her dismay at the government's lack of leadership led to her dismissal several months later.
Farouque said this case extends beyond employment contracts.
“Angela didn’t do anything wrong. She expressed a political opinion about a public debate in a tweet,” he said.
“No social media policy can stop someone from expressing their political opinion. It’s an employer’s policy. We are talking about the law of the country.”
Williamson is not a public servant and is currently appealing her employer's decision. Many have said she is facing the consequences of speaking out.
"I thought it would end differently," she told The Project. "I thought there would be genuine reform that I could have done what I did, been through what I did, and still get a really good outcome for everyone.
"And still have my job."