Australia: Army officer claims unfair dismissal after sacking for homophobic views – which case won?

The Facts

Member of armed forces becomes candidate in Federal election

The dismissed employee had joined the Army Reserve in 1997. He then transferred to the Australian Army, serving overseas in various locations from 2006-2009 before returning to the Army Reserve, where he held the rank of Major, until the events giving rise to the litigation.

While still in the regular army, he became involved in a right-wing political party, eventually becoming a candidate in a Federal election. Concurrently with that nomination, he launched a webpage, Facebook page and Twitter page to promote his candidature. His webpage identified him as an army officer who had served in the Iraq war.

Anti-gay comments on social media give rise to formal rebuke from employer

The events giving rise to the litigation started when the employee, a staunch Roman Catholic, published comments on proposed amendments to the Commonwealth Sex Discrimination Act 1984, which in the employee's view had the potential to force the church to permit the hiring of openly homosexual teachers in its schools.

A few days after launching his social media pages, he tweeted: "I wouldn't let a gay person teach my children and I am not afraid to say it."

He continued to make his views known at length via his various social media outlets, earning a formal rebuke from his commanding officer, accompanied by a direction not to make further comment.

Media releases accuse ADF of hypocrisy over Sydney Gay and Lesbian Mardi Gras

A couple of months later, after learning that the Australian Defence Force had approved of ADF members marching in uniform in the Sydney Gay and Lesbian Mardi Gras, the employee issued a series of media releases accusing the ADF of hypocrisy in taking him to task for expressing his religious and political views, while "bending over at every opportunity to help gay members".

Lest his point not have been clearly understood, he said, among many comments, that "no soldier wants to be led by a commander that has voluntarily had his balls cut off", in reference to an ADF policy about funding sex change operations.

Employee ordered to remove "offensive and divisive" opinions from social media websites

This earned the employee a very stern rebuke, to the effect that his views were "both offensive and divisive". This was coupled with an order that he should immediately stop publishing any such material in the public domain which identified him as an army officer, and that he had to remove all such material from his social media sites.

The employee's response was to challenge the validity of the army's actions through internal procedures.

Applicant issued with notice to show cause why he should not be dismissed

The crunch came when the employee had an acrimonious public exchange on social media with a transgender officer on the staff of the Chief of Army, described by the Federal Court judge who heard the matter as doing credit to neither participant because of its "intemperate, vitriolic and personally offensive character".

This was the straw that broke the camel's back: the employee was issued with a notice to show cause why he should not be dismissed. About six months later, his employment was terminated. The employee resorted to internal appeal processes which were unsuccessful. He then applied to the Federal Court for judicial review of the termination decision.

case a - The case for the employee case b - The case for the army
  • I was not on duty when I expressed the opinions I did. The army can only discipline a soldier for something done on duty.
  • My opinions are informed by my religious beliefs. As part of the Commonwealth government, the army cannot interfere with my right to the free exercise of religion.
  • Under the Constitution I have a right to freedom of political expression.
  • The army's decision to sack me for expressing religious or political beliefs is unconstitutional.
  • The army applied its internal processes incorrectly in deciding to dismiss me.
  • The employee's conduct had brought the army into disrepute.
  • ADF had clearly articulated and publicly promoted policies encouraging gender diversity and inclusiveness, which the employee had publicly derided and rejected.
  • This was made worse by the fact that the employee identified himself as an army officer when he did so.
  • The employee disobeyed direct orders to cease the conduct we had complained about.
  • We applied our internal procedures correctly. We had no choice but to dismiss an employee who was a loud, persistent and vehement critic from within our own ranks, and who would not stop expressing intemperate homophobic views publicly when ordered to do so.

So, which case won?
Cast your judgment below to find out

Vote case a – The case for the employee
Vote case b – The case for the army

Geoff Baldwin
Employment law
Stacks Champion

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