Last week, a teenager working in Canberra was fired from her job for posting that she will vote "No" in the same-sex marriage survey. In explaining her actions, the employer argued that the post was "hate speech" that could damage the reputation of her business. Others claim this is a clear-cut case of unfair dismissal. Let's take a look at what the law reckons.
Last week's online furore centered around two Facebook posts by different people: one from a childrens’ entertainment worker who does not support same-sex marriage and another from her employer which we have included below (click to enlarge):
Many would agree with the sentiments contained in the above post: but does that make her actions legal? It depends on a range of factors, including the type of employment and any workplace behaviour policies the contractor agreed to adhere to before taking on the work.
To make things clear, the dispute in question was between a business owner and a contractor. The individual who had their services terminated was not a full- or part-time employee of the company.
Generally speaking, it is legal for casual workers and part-time contractors to have their employment terminated without notice. If the employer had simply removed the worker from the roster without explanation that would likely have been the end of it.
However, Australia has strict rules about terminating someone because of their political or religious views. This falls under unlawful discrimination law and is supposed to protect all groups of people. As Attorney-General George Brandis once famously declared, people have "a right to be bigots".
There's a lot to talk about with this year's Australian Marriage Law Postal Survey. By now, most of you should have received your survey forms which asks one relatively simple question. “Should the law be changed to allow same-sex couples to marry?”
We've collected together all the stories you need to read — from what happens if you can't find your survey to what a "same-sex marriage plebiscite" actually means. (Plus, how to score a "survey sausage"!)
So where does this leave the employer in question? Did she break the law by "sacking" a contractor who expressed opposition to same-sex marriage? It largely depends on the rules contained in her contract.
Many businesses have specific codes of conduct relating to social communication and social media. Any activities that could reflect negatively on the employer (such as opposing same-sex marriage) may result in disciplinary action or dismissal.
In short, you shouldn't do anything on social media that could embarrass, disparage or damage the reputation of your employer's brand. This appears to be the position the business owner in question is taking. As she explained to critics in another Facebook post:
"This entertainer of ours, she had posted representing the business on the same platform — the Facebook page where this [pro 'No' vote] frame was shared."
So firing someone over a personal social media post can be legal - but only if these rules were clearly spelled out in the employee's contract.
Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.