Member of armed forces becomes candidate in Federal
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
Anti-gay comments on social media give rise to formal rebuke
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
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
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
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
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
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
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
Sticking to what you know in new employment may backfire when client-specific restraints protect an employer's interest.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).