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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
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”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions