My Business’ sister publication Lawyers Weekly spoke with Maurice Blackburn principal Kamal Farouque, who is representing sacked Cricket Australia worker Angela Williamson in her case against her former employer for tweeting her thoughts on abortion policy in Tasmania and potential breaches of the Fair Work Act.
This case is not about whether Ms Williamson insulted the government, Mr Farouque said, but rather about whether by expressing her political opinion she was terminated, in a breach of section 351 of the Fair Work Act.
“That section prohibits somebody being sacked for their political opinion, which includes the expression of a political opinion,” he explained.
“That’s what we say Angela did about a political matter that was being debated in the Tasmanian Parliament and, consequently, we say the act has been breached.”
The fact that her comments were about a Tasmanian minister does not make them any less an expression of political opinion, he continued.
“It would obviously be a dangerous precedent if employers were able to sack people if they were critical of a government policy or government ministers.”
There has been an increase in the number of employees seeking to regulate the social media activity of their staff, Mr Farouque said, and thus, challenges from fired workers in the Fair Work Commission in circumstances where sackings occurred for social media posts of a private nature.
Tribunals, however, are pushing back on employers’ attempts to regulate private social media activity, he noted.
“There’s always a risk for employers when they try to regulate private social media activity,” he said.
“Employers need to be a little bit more robust and recognise that employees and the community generally expect a reasonable respect for their ability to carry on their private lives, including by using social media.”
Furthermore, people are more likely to express their opinion about sociocultural causes, such as abortion (as is the case for Ms Williamson), he said.
Public response so far this week seems to indicate, he surmised, that people expected that they won’t be prevented from expressing their views about certain issues.
“This is not a social media case where somebody has engaged in a workplace dispute with their colleague, they haven’t trashed their employer in a social media setting, they’ve made a contribution to a public debate on a political matter, and the contribution was driven by a powerful personal experience,” he explained.
“I think the community expects that people should not be sanctioned for having participated in that style of debate.”
Asked whether Ms Williamson’s firing for her social media activity would also be in breach of constitutionally protected implied freedom of political communication, as per the landmark Lange v Australian Broadcasting Corporation case from 1997, Mr Farouque replied:
“The Lange case dealt with the interference by government on freedom of expression as part of a representative democracy. This case raises questions about employers seeking to regulate the expression of political opinion.
“In that way, it’s different to the Lange case and while some of the principles there might be useful, our case relies on the statutory protection under the Fair Work Act which is that you can’t be terminated for a political opinion.”
Marque Lawyers managing partner Michael Bradley added: “The courts have been all over the shop on whether the implied freedom gets in the way of an employer’s freedom to sack their staff when they don’t like what they say on social media.”
“It’s an open question, and the answer may be different as between government and private employers,” he said.
Newcastle Law School academic Kcasey McLoughlin tweeted, “It’s outrageous that she’s been dismissed for sharing these views, but it doesn’t strike me as an IFPC (implied freedom of political communication) case.”
Her colleague, Newcastle associate professor Neil Foster concurred, tweeting: “Sacking someone because of privately expressed political views not work-related is disgraceful but doesn’t seem to engage IFPC as not justified by legislation as such.”