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16 October 2019
Can an employer dismiss an employee for expressing their political opinions? While the answer is not clear-cut if the expression constitutes breach of policy or failure to follow a lawful and reasonable direction, it is likely that the employer can dismiss the employee.(1)(2)(3)
So, what happens when an employee's failure to follow a lawful and reasonable direction to stop breaching their employer's policies, which happens to be the expression of a political opinion, results in termination of employment?
According to a recent authority, an employee's expression of political opinion is irrelevant in circumstances where that expression constitutes a failure to follow a lawful and reasonable direction to stop breaching an employer's policies.
While this is not to say that expressing political or religious views may constitute grounds for dismissal in particular circumstances, it is a steadfast reminder for employers and employees that failure to follow a lawful and reasonable direction may justify termination of employment.
In Rumble v The Partnership trading as HWL Ebsworth Lawyers(4) the Federal Court upheld an employee's dismissal after he had criticised his law firm's clients in an opinion piece in the Sydney Morning Herald and the Canberra Times.
Rumble was a lawyer who was employed on a casual basis at HWL Ebsworth's Canberra office. From 2011 to 2012 Rumble led a government-commissioned review into historical sexual and physical abuse in the Australian military. The Defence Department and Department of Veterans' Affairs were among HWL Ebsworth's clients.
Rumble felt that the government was not doing enough to implement the review's recommendations. In fact, he made several public remarks to that effect in December 2016 when he wrote an article about the issue criticising the "continuing disgrace" that victims of abuse in the military were not receiving veterans' benefits.
Rumble's actions irritated the firm's managing partner and Rumble was expressly told to stop publicly criticising the firm's clients. Further, in 2014 the firm implemented a policy requiring its partners and staff not to engage in criticisms of the firm's clients without the permission of the firm's managing partner.
Despite this, Rumble continued to publicly disparage the firm's clients on occasion without approval. This eventually caused the firm to email Rumble at 10:57pm on 20 February 2017 terminating his employment.
Rumble argued that he had been unlawfully dismissed and discriminated against based on his political opinion. HWL Ebsworth argued that it had not dismissed him for his political opinion and was entitled to terminate him without cause, which was what it had done.
The court decided in HWL Ebsworth's favour and dismissed Rumble's application. The court found that Rumble had not been terminated because of his political opinion (to which the court noted that his employer had at least been "indifferent and quite possibly in fact sympathetic"). Instead, Rumble had been terminated because he had repeatedly disobeyed a reasonable direction to stop criticising the firm's clients.
Crucially, the court observed that the firm needed no legal basis to terminate Rumble's employment, which it could do without cause, because there was a clause in Rumble's employment agreement stipulating that either party could terminate the employment relationship without cause on three months' notice.
Interestingly, the court commented that the firm could have decided to terminate Rumble's employment because he had expressed a political opinion but that is not, as a matter of fact, what it did.
Compare Rumble to circumstances where an express freedom of expression in an industrial instrument or law exists, as happened in Ridd v James Cook University.
In Ridd, the court found that the university had unlawfully acted against Professor Peter Ridd by censuring, making adverse findings against and ultimately dismissing him for expressing his concerns about the quality of scientific research published on the physical state of the Great Barrier Reef.
The enterprise agreement included clauses to the effect that the university was committed to acting in a manner consistent with the protection and promotion of intellectual freedom, including the right of academic staff to participate in public debate and express unpopular or controversial views.
The court found that the university's actions had been inconsistent with the guarantee of academic freedom provided for in its enterprise agreement.
Rumble is not a green light for employers to terminate employees who express political views. Instead, it is a reminder for employers and employees that a failure to follow a lawful and reasonable direction may justify terminating an employee (depending on the circumstances of the case). Employers must be mindful of the employment and industrial landscape within which they operate, such as in Ridd.
For employers, Rumble reinforces their possible capacity to control employees' expression of certain views through the implementation of policies and take appropriate disciplinary action such as termination of employment. However, this should be balanced, where appropriate, with considerations such as those in Ridd. For employees, Rumble is a reminder that there are consequences for breaching an employer's policies and failing to follow their lawful and reasonable directions.
As always, expectations should be clearly communicated to employees, and employers should assist their staff to understand the consequences of a breach of policies or failure to follow a lawful and reasonable direction.
For further information on this topic please contact Aaron Goonrey and Isabel Hewitt at Lander & Rogers by telephone (+61 2 8020 7700) or email (firstname.lastname@example.org or email@example.com). The Lander & Rogers website can be accessed at www.landers.com.au.
(1) For further details on the consequences of failing to follow an employer's lawful and reasonable direction please see "Get your hands off my… data! Employer's request for biometric data deemed unlawful".
(2) Further details on the line between reasonable and unreasonable directions is available here.
(3) Further details on the implied freedom of political communication and consequences of expressing religious views on social media if that expression constitutes a breach of a policy or code of conduct is available here.
An earlier version of this article was first published in HRM Online on 13 September 2019.
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