Was dismissal against 'political expression'? Federal court clarifies
The Federal Circuit and Family Court of Australia (FCFCOA) dealt with a dismissal case of a worker who got fired over a political post on LinkedIn.
Businesses should concern themselves with the social media activity of their staff because of “reputational management.”
Employers are entitled to act upon an employee’s personal social media conduct if it breaches their employment contract and is contrary to the organisation’s interests and values.
In February last year, HRD reported about a Fair Work Commission case that upheld the summary dismissal of an employee who posted highly offensive material on his personal Facebook account.
In this case, the worker’s dismissal was triggered by a public complaint about the LinkedIn post, blaming the employer for the slip-up.
Background of the case
The worker was a casual contractor employed by the Australian Bureau of Statistics (ABS) in a field officer role to assist with the 2021 census. Her role included personally helping members of the public to complete the census by delivering census materials to the person’s allocated geographic work area and collecting those materials after the census day for safe return to ABS.
The government entrusts field officers to collect confidential material on behalf of the ABS, requiring a high level of trust from the public. They visit households to follow up with residents and are the interface between the ABS and members of the public.
When the worker signed the contract acceptance form, she confirmed that she had read and understood the job description and essential duties of her rule, including her obligation to comply with ABS’ code of conduct and social media policy, part of which states that a field officer:
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“Must not make comments on behalf of ABS or government – add a disclaimer that anything you publish is an expression of your personal view and not the ABS or government.”
According to records, ABS is an apolitical organisation and requires its employees to uphold “the integrity and good reputation of the ABS” and to “refrain from demonstrating or supporting political activity.”
Later, the ABS got ahold of the worker’s post on her LinkedIn profile, where she shared an image that discussed the “impacts of the [COVID-19] lockdown,” with the title ‘Dear Neighbor’:
The “Impacts of lockdown” list enumerated “suicide, domestic violence, mental health crisis, economy shattered,” among others. And in the said shared post, she added the caption:
“When is enough, enough? It’s time to STAND UP AUSTRALIA. AUSTRALIAN REVOLUTION NOW!”
The ABS received a complaint from a private citizen which said:
“Hi, I think you should know some of your staff are posting crazy Covid conspiracy theories and misinformation on LinkedIn whilst being openly shown as working for the ABS. It’s incredible it can happen. I’m going to report this to my MP and to the news.”
The ABS Director of People Management and Wellbeing saw the LinkedIn post from the ABS census social media team. The director expressed “immediate concern about the content of the LinkedIn post because it encouraged a revolt against the government.” He considered the post “identifiable” and “associated with the ABS because the worker had included this in her work experience, appearing at the top of her LinkedIn page.” She had around 7,000 connections on LinkedIn at the time.
As for her defence, she said that the message was “anti-all (state and federal) Australian government,” and she “had removed the ABS from her work experience soon after the post was made as she did not want to associate with an employer that implied what she can and cannot write on LinkedIn.”
The employer sent her a letter that terminated her employment.
In another HRD report, a worker was fired because of a TikTok video she posted that disclosed her salary and how she spends it.
The parties’ arguments
The ABS said the worker’s post “asked Australians to stand up and revolt against government lockdowns, which was in breach of its code of conduct and social media policy.” It added it was unacceptable since it was done “in support of a political message and identified her as an ABS employee without disclaimer.”
It also said that when her manager talked to her about the post, her emails were “inappropriate, aggressive, disrespectful and in breach of the APS code of conduct and gave the ABS no confidence that she understood its policies.”
On the other hand, the employee said her termination was “a violent personal act taken for reason/s that included her expression of political opinion.” She added that this was against the Fair Work Act and asked the court to rectify the situation.
She also denied any “aggressive or inappropriate tone” in her email responses to her manager, saying she was “plainly aggrieved by the fact of the disciplinary process including termination having been handled purely by email, via managers with whom she had never met nor spoken.”
The federal court’s decision
The court directly dealt with the issue of whether her dismissal violated her political expression.
“She was not terminated for having a political opinion,” it explained.
“The expression of her political opinion bore no more than an association with the reasons for her termination – and only to the extent of her conduct in choosing to post her political opinion in a manner that breached the terms of the employer’s code of conduct and social media policy,” the court said.
“The decision to terminate her was for her failure to follow those requirements of her role and her subsequent failure to behave in a manner required by the code of conduct.”
Thus, the court dismissed the worker’s claim against the employer.