Australia: Will the Fair Work Act protect the right of an employee of Cricket Australia to tweet her political opinion?

Earlier in August, Fairfax broke the story of a Cricket Australia employee, Angela Williamson, allegedly sacked for criticising via Twitter the Tasmanian government's policy on access to abortion services.

It's become a PR nightmare for Cricket Australia with the news of Ms Williamson's dismissal doing far greater damage to Cricket Australia's reputation than Ms Williamson's tweets. Many have commented on the much harsher treatment of a head-office employee who may have ruffled some conservative feathers with her tweets, compared to the lighter sentence of a suspension for the ball tampering on-field Cricket Australia employees.

In this blog I consider the protections of the Fair Work Act designed to defend an employee's right to political opinion, and the tricky task the Courts have of identifying the "substantial and operative" reason for the adverse action taken. Did Cricket Australia sack Ms Williamson because of her political opinion, that is, her advocacy for abortion services to be restored in Tasmania? Were her tweets "fundamentally inconsistent" with her ability to "represent Cricket Tasmania and Cricket Australia in the best possible manner to government" or was it her political opinion itself that they felt was fundamentally inconsistent with her role?

Anti-discrimination laws apply not only to the protected attributes but also to any characteristics associated with those protected attributes. Was it because of the tweets that Cricket Australia perceived Ms Williamson to be an outspoken, troublesome, feminist, and it was those stereotypical characteristics of a pro-choice activist which they were concerned with? Was Cricket Australia worried about the Tasmanian Government's response to Ms Williamson's tweets because she promoted the restoration of abortion services in Tasmania, as opposed to the "disparaging tone" they assert she used in expressing her political opinion?

It may be difficult to disentangle the protected attribute, in this case a political opinion about abortion facilities, from the adverse consequences that Cricket Australia perceived that political opinion would have on its relationship with the Tasmanian Government. Arguably, any perceived inability of Ms Williamson to work with the Tasmanian government was because she holds a contrary political opinion, and not because her personal tweets were so offensive, rude, or unprofessional, as in the case of the offensive term "scab" used during industrial action, in the famous BHP Coal case.

Protection from adverse action under the Fair Work Act

The Fair Work Act prohibits an employer from taking adverse action (including dismissal) against an employee, because of the employee's political opinion.

The tweet cited in Ms Williamson's termination letter as causing greatest offence consisted of the following words ".....Most irresponsible, gutless & reckless delivery in parly ever #politas". It's been reported that Ms Williamson was expressing her displeasure at the Tasmanian Health Minister after he rejected a motion by the Labor opposition to re-establish services by providing abortions in public hospitals. The tweet was made in her personal capacity, outside of work hours.

The other two offending tweets referred to in her termination letter as "inappropriate", and contrary to Australian Cricket's social media policy include:

"one dated 28 May 2018 using the following words: ".....So you share your story ,hoping it convinces the gov to act urgently & 5 months later – NOTHING. NO meeting with the Premier. No results....#politas";

And another dated 9 June 2018 using the following words: "....Nothing yesterday from the govt or #politas on #WorldOceansDay? Weird given that we live on an ISLAND".

It is unlikely to be disputed that Williamson's tweets amounted to "political opinion" and Cricket Australia's sacking of her was clearly "adverse action". However, the case will likely turn on the meaning of the words "because of" in section 351, that is, to discharge the onus that they didn't dismiss Ms Williamson "because of" her political opinion, Cricket Australia will need to lead evidence that they dismissed her for non-protected reasons. That is, because her tweets were in breach of its social media policy, and damaged Cricket's Australia's legitimate business interests being its relationship with the Tasmanian government. Cricket Australia will likely argue that it was the "disparaging tone" of the tweets which was objectionable, not her political opinion itself.

As a government relations manager, the strength of her relationship with the Tasmanian Government is obviously important, and her tweets may indicate an inability to maintain good relations and represent her employer effectively. However, it may be a very difficult to extract the legitimate non-discriminatory reasons from the protected attribute of political opinion. That is, Cricket Australia will need to disassociate the "disparaging tone" of the tweets and the anticipated damage to Ms Williamson's relationship with the government, from the actual political opinion she held, or assumed characteristics associated with such a political opinion.

The High Court has shown a willingness to allow employers to fire employees when discriminatory factors are at play, as long as the employer can point to a non-discriminatory reason for why the employee was fired: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (Barclay) and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 (BHP Coal). These decisions contrast with that of Sayed v Construction Forestry, Mining and Energy Union [2015] FCA 27 (Sayed) whereby the employer was unable to prove that the basis for its actions were sufficiently disconnected from the employee's political opinion to avoid liability under the adverse action laws.

In Barclay, the employee, Mr Barclay, sent an email in his capacity as a union delegate to union members at the Bendigo Regional TAFE containing serious allegations of fraud in relation to an upcoming audit. The employer contended that reasons Mr Barclay was fired did not include the fact that he was a union delegate or had participated in union activity. Rather it was because of the manner in which he raised the allegations and his failure to report his concerns to direct to management to enable them to investigate. The High Court unanimously upheld the first instance decision that the employer did not dismiss Mr Barclay because of his position as a union officer or because he engaged in industrial activity.

In BHP Coal case, judicial opinion was divided with the High Court split 3 to 2. The alleged misconduct was harder to distinguish from the protected industrial activity in question. In BHP Coal, the employer contended that it sacked a worker, Mr Doevendans, after he held up a sign during industrial action with "Scab" written on it. At first instance, the Federal Court found that, since a reason for the dismissal was that Mr Doevendans had held and waved the sign, it followed that one reason for his dismissal was his participation in the protest activity organised by the Union. The Court ordered Mr Doevendans be reinstated.

BHP successfully appealed, with the Full Court finding that it was an error to treat a person's union position, membership or activities as having to be entirely dissociated with the adverse action taken. The Full Court held that the "substantial and operative" reason for the dismissal was that Mr Doevendans breached BHP Coal's workplace civility policy by holding a sign that was offensive, humiliating, intimidating and harassing.

Upon appeal to the High Court, Chief Justice French and Kiefel J concluded that it was not possible to find that the employer had contravened the Fair Work Act since none of the reasons stated by BHP's general manager as actuating the dismissal were prohibited under the Fair Work Act. The High Court rejected the view that the employee's industrial conduct and his termination were inextricably connected and BHP Coal's decision to sanction the employee on conduct related to the "scab" reference was lawful, notwithstanding the fact that the term "scab" is synonymous with industrial activity.

In Sayed v Construction Forestry, Mining and Energy Union [2015] FCA 27 (Sayed) the distinction between the protected attribute and the alleged misconduct was again considered, and in that case, it was harder to disentangle. Mr Sayed was a union official employed by the CFMEU, and a former member of the Socialist Alliance. During Mr Sayed's employment, a complaint was made about him "bagging" AWU officials to AWU members. The CFMEU was also subsequently made aware of Facebook activity concerning Mr Sayed's involvement with the Socialist Alliance and a post which they believed disparaged the CFMEU. The CFMEU redeployed, suspended and ultimately sacked Mr Sayed, but they argued the adverse actions were taken because Mr Sayed had been critical of AWU officials, had lied about the extent of his dealings with Socialist Alliance and had disparaged the CFMEU on social media.

The CFMEU sought to rely on Barclay and BHP Coal, submitting that the allegations made about the Mr Sayed "bagging" AWU officials were independent of the allegations about his membership of the Socialist Alliance. The CFMEU asserted that an employee gains no special protection or immunity simply because he or she happens to have a protected attribute, if the reason for the adverse action is independent of that attribute.

However, the Federal Court found that although a combination of matters caused the CFMEU to take the adverse actions against Mr Sayed, in each instance a significant part was inextricably linked to Mr Sayed's political opinion – namely a strong belief that people associated or affiliated with the Socialist Alliance tended to infiltrate and undermine unions. This led the CFMEU to more readily believe that Mr Sayed had criticised the AWU and that his social media post was intended to disparage the CFMEU. They relied on stereotypical assumptions of the Socialist Alliance, to assume that Mr Sayed was likely to engage in such behaviour.

Cricket Australia will contend that akin to the offensive "scab" sign held up during an industrial protest in BHP Coal, the reason they sacked Ms Williamson was the "disparaging tone" of the tweets, and its belief that such conduct was incompatible with maintaining a positive relationship with the Tasmanian Government. A distinction will need to be drawn between the protected attribute, being a political opinion about women's rights to abortion services, and the offensive nature or disparaging tone of the tweets which damaged the relationship. It might be tricky to suggest the relationship between Ms Williamson and her Tasmanian Government stakeholders was damaged and her continued employment untenable, without inferring stereotypical characteristics of a person who holds pro-choice political opinion (opinionated, activist, feminist, agitator, etc.), which is effectively taking adverse action because of the political opinion.

Final thoughts

The Williamson v Cricket Australia case will be an interesting test of whether the general protections in the Fair Work Act offer any protection for employees wishing to maintain a personal and political identity outside of work, when their political identity becomes known by their employer or its stakeholders. It will also be interesting to see how the protected attribute of political opinion is disentangled from any non-discriminatory reasons for Ms Williamson's dismissal. Even if Cricket Australia can convince the Court that it was not Ms Williamson's political opinion on abortion services that led to her termination, but her disparaging tone in her expression of that opinion, wouldn't such a result be contrary to the protection intended to be provided by section 351?

However, a thought for another day – if Ms Williamson is successful in her case, will employers ever have the right to constrain an employee's polite and professional expression of a political or religious opinion, when it is contrary to their legitimate business interests or workplace policies? For example, if Israel Folau again voices his opposition to homosexuals (in a more "respectful way" as Raelene Castle optimistically hopes), and it's that religious opinion itself that damages Rugby Australia's interests in sponsorship agreements, tickets sales and player health and safety, would Folau be immune from adverse action with the section 351 protection of religious opinion?

Regardless of the strength or otherwise of Cricket Australia's position defending Williamson's adverse action application, I think that given the social media fall out, Cricket Australia will be seeking to settle the matter before the start of play, depriving me the joy of reading a Court's decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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