Is It Legal To Fire Someone For Spreading 'Hate Speech' Online?

Image: iStock

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):

Image: Facebook

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".

Everything (Yes, Everything) You Need To Know About The Same Sex Marriage Vote

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"!)

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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.

WATCH MORE: Tech News

Comments

    So voting No is "hate speech"?

    This is precisely the concern the No case has and which the Yes case says is a scare campaign.

      The act of voting no is not hate speech.

      Proclaiming things like "Homosexuals are pedophiles" or infering that same sex couples will abuse their children or are somehow lesser parents is hate speech.

        No mention of sexuality in the federal law, so it isn't a federal crime.
        That means that ACT law applies, which would require that she'd done one of:
        -Incited hatred
        -Expressed revulsion
        -Expressed serious contempt
        -Expressed severe ridicule

        If she'd done any of these, our fine media would have quoted it, so she's innocent.

        Why am I talking about the law instead of moral obligation?
        Because I consider free speech a meta-right, the mechanism by which all other rights can evolve and improve, and so more important than all other rights.

    This article misses the point because it doesn't understand the industry. Despite the words used by all involved, the business owner in question is not an "employer" and the contractor is exactly that; a contractor. Not an "employee". The entertainment industry works much like the building industry with contractors working for multiple companies at any one time. They often quote for work like construction contractors, and invoice those businesses when they complete work. The contractor in question runs their own small business, in much the same way as the companies they contract to. They are engaged as contractors and nobody is obliged to give them work, or explain why they are not giving them work. Unfair dismissal laws were never in play. She's lucky she got an explanation at all.

      I explain this quite clearly in the fourth paragraph:

      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.

        Except that she doesn't fall into either category and you continue to refer to the contractor as a worker. She isn't. This is a dispute between two small businesses, both with ABNs, registrations, and trading names. Accepting the premise of the argument (that this was ever about "unfair dismissal") is a repetition of mistake the contractor made when she claimed she had been "fired" or "sacked" and by the business owner when she said the same. You can't be unfairly dismissed from a job you didn't have.

          As I said below, it can still be unlawful to discriminate against contracted workers based on their political or religious views.

            Mayhem is probably right about the whole unfair dismissal thing. However, there is a law this does fit under. It's called General Protections Dismissal.
            General protections laws apply to:
            -employees and prospective employees
            -employers and prospective employers
            -independent contractors and prospective independent contractors
            -a person who has entered into or who has proposed to enter into a contract for services with an independent contractor
            -an industrial association, including an officer or member of an industrial association.

            You can read more about it https://www.fwc.gov.au/termination-employment/general-protections-dismissal

        Their employment wasn't terminated though. The contract was cancelled. Just the same as if I cancelled a contract I had with IBM because I didn't like the way they stood on a social issue, nothing to do with employment, people who work for IBM still work for IBM, they're not just working WITH me anymore.

          Exactly.

            What am I protected from?
            Adverse action
            Adverse action is action that’s unlawful if it’s taken for particular reasons.
            Adverse action includes doing or threatening to do any of the following:
            firing an employee
            injuring the employee in their employment, eg. not giving an employee legal entitlements such as pay or leave
            changing an employee's job to their disadvantage
            discriminating between employees
            not hiring someone offering a potential employee different (and unfair) terms and conditions for the job, compared to other employees
            ending a contract, or refusing to enter into a contract with an independent contractor, discriminating against them in the terms and conditions offered, altering their position to their detriment, refusing to make use of their services, or refusing to supply goods or services to them
            an employee or independent contractor taking industrial action against their employer or principal.

    Did she break the law by sacking a contractor who expressed opposition to same-sex marriage?

    I don't know, I'm not a lawyer but I don't agree with this at all. The door has to swing both ways, we have a plebiscite, whether we like it or not, where people can vote yes or no. I myself voted yes, but I do infact respect peoples right to vote no, even if I do not support their reasoning.

    While I endorse fully the idea of equality, I see the above post from the person as just as inflammatory, espousing the idea that 'if you do not do not fall in line, you will have no place in this company', essentially, once the vote has passed, where does that buck stop with such a person? I agree homophobia is wrong, by all means, but what if, just what if they take an opinion contrary to popular belief, a controversial one, euthanasia for example? Do they then have the right to fire someone who doesn't agree with them on that matter, as they don't believe maybe 'in the same values of life'?

    It's a slippery slope that's for sure.

    Last edited 25/09/17 5:24 pm

      The owner's tone sounds rather strident at the least towards anyone who does not abide by their views. Not quite hateful in my opinion, but quite possibly by theirs. Irrespective of one's view on this particular matter "love and livelihood of human beings" is not something this person seems to spread to widely if you disagree with them, especially if it is bad for business (point 1). A person to avoid.

      I myself voted yes, but I do infact respect peoples right to vote no, even if I do not support their reasoning.

      This is the thing, some have decided what the outcome is to be and feel it is their right to demonise those who don't vote the same way as they do.

      To some (I refuse to put them in the 'Yes' camp as they are so destructive), if one doesn't vote 'Yes' then one is confirmed to be homophobic.

      In all honesty, this is an issue that has gone completely down the toilet. Not just by the politicians but even by members of the public.

      I personally don't see this as the most important issue right now, but at the same time I just want it over with. The amount of antagonism from both sides is making it almost impossible to have a mature discussion on any part of the matter.

        Perhaps you can enlighten us as to what a "mature discussion" about one group of people being denied equal rights would look like?

        Maybe you can demonstrate it by using something like Aboriginal voting rights as an example? I'm sure plenty of (white) people didn't see giving Aborigines the right to vote as "the most important thing right now" either...

    If something is hate-speech, then it should be banned outright. But the fact we are having a vote means that yes-SMS and no-SMS are both legitimate views, and the vote is to see the majority gets in.

    Don't you realise that a YES-successful vote will bring in legislation that will deem, what is currently a legitimate view, to be hate speech. We are already seeing how the Left behaves towards anyone who disagrees with them. Imagine the tyranny if the YES-vote wins.

    If a person can be sacked before a YES vote, imagine what it will be like if SSM becomes law. Will you be able to encourage your son to be masculine and not be feminine? Will that be regarded as hate speech?

      Will you be able to encourage your son to be masculine and not be feminine? Will that be regarded as hate speech?

      No. But why would you want to "encourage" your child to be anything other than themselves?

      We are already seeing how the Left behaves towards anyone who disagrees with them.

      Why's it always the Left's fault? What about all the right wing supporters of SSM? Do they do no wrong in your eyes?

      Calling for continued discrimination of a minority sounds like hate speech to me. No matter what side of politics you come from. I have no issues with making public displays of hate speech a fireable offence. I sure as hell wouldn't want to work with or employ someone like that.

      If a person can be sacked before a YES vote, imagine what it will be like if SSM becomes law.

      I would imagine much the same as it is now, but now same-sex couple can get married. If you think it's anything else, then you've got some screws loose to the extent of Tony Abbott.

      Will you be able to encourage your son to be masculine and not be feminine? Will that be regarded as hate speech?
      Not all gay guys are feminine. That's a pretty big misconception right there lol.

    She
    Wasnt
    An
    Employee

    She
    Was
    A
    Contractor

    The
    business
    owner
    decided
    not
    to
    use
    her
    services
    any
    more

    Just like baking a cake, no?

      Pretty sure discrimination laws also protect contractors. If a contractor was specifically and unambiguously told that their contract was being terminated because they are gay/black/female would that be legal?

        No, because that's discrimination. People being fired for promoting hate speech isn't discrimination.

          It can be. Political and religious beliefs are protected by discrimination law. Is urging people to vote "no" hate speech or a political/religious belief? It depends on what was said, but I'd argue this example leans towards the latter.

            Nothing to do with politics or religion, it's advocating the continued discrimination against a minority. If it was any other group than the LGBTQI community, people would be enraged by it.

              Don't get me wrong, we're on the same page here. But legally, it is currently permissible to consider same-sex marriage unacceptable - that's why we're having a same-sex marriage survey.

    Non religous buisness owner decides not to renew a contract - OUTRAGE!!!!!

    Religous buisness owner decides to not hire someone because on their views - ALL GOOD! PROTECT RELIGOUS FREEDOMS

    If people want to be outraged at this, Be consistent. If you dont want buisness to be able to hire and fire a person because of things like this, Then you should demand the same of religous organisations who are exempt from those laws.

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