Home' HR Monthly : September 2019 Contents September 2019 HRM magazine 35
limits of what an employer's prerogative is,” says
Byrnes. “If an employer seeks to terminate the
employment of an employee based on something
they’ve said that doesn’t affect the interests of
the employer, then it’s likely there won’t be a
valid reason for termination and, therefore, it
will be an unfair dismissal.”
Section 772 refers to religion, but makes no
mention of religious practice. “On a narrow
reading of Section 772, unless RA terminated
him because he is Christian, then it’s not an
unlawful termination,” says Byrnes.
It remains to be seen whether the court will
accept that sharing views via an Instagram
post – compared to, say, observing a religious
holiday – represents practising one’s religion.
“If a broader view is taken and it is
considered that what he was doing was a
necessary religious observance, then that would
strengthen his position,” he says.
Industrial relations and employment law yer
Aaron Goonrey, partner at Lander and Rogers,
says Folau’s case will test the employer’s rights
against the protections offered by Section 772.
Despite being the subject of several high-profile
cases in recent years, it’s a legal sticking point
that has remained u ntested.
In a case that shares similarities with Folau’s,
SBS sports reporter Scott McIntyre posted a
series of tweets on A nzac Day in 2015 about
the disreputable actions of Australian soldiers
in theatres of war. McIntyre’s comments
generated an enormous amount of controversy
and attracted the condemnation of then
communications minister Malcolm Turnbull.
SBS dismissed McIntyre for breaching the
McIntyre sued SBS for unfair dismissal under
Section 772, claiming that he was fired for
expressing his political opinion. SBS claimed
McIntyre was not dismissed for his political
views, but for breaching the organisation’s code
of conduct and social media policy.
SBS contended in court that McIntyre’s
refusal to apologise for his statements brought
the organisation into disrepute and that the
reporter’s position at the broadcaster had
become untenable. McIntyre and SBS reached a
settlement three days before a scheduled hearing
at the NSW Federal Court in 2016.
“Where we don’t have a clear precedent yet
is where the rights of the employer clash with
discrimination law protections for employees,”
says Anthony Forsyth, professor of Workplace
Law at RMIT University.
The reason Folau’s case might change that
is his desire to get his day in court. In July, his
legal team lodged an eight-page claim with
the Federal Circuit Court in Melbourne that
argues he was unlawfully dismissed because of
his religion and seeks compensation, an
apology and reinstatement.
Enter the web
The advent of social media changed
the legal landscape.
“Ever yone is now
their own personal
publisher via social
media,” says Goonrey.
A distasteful joke shared
in private is unlikely
to result in dismissal,
but the same joke
shared on social media
might find an employee
guilty of damaging
their employer’s brand
and in breach of their
“In the last few years,
employers have brought
in social media policies
that restrict the kinds of
things employees can say
online, sometimes even
in a private capacity,”
says Forsyth. “There have
been cases where employees
have ranted on Twitter, and that’s
brought them into breach of
In 2013, Cameron Little, a
customer relations manager at
Credit Corp Group, sued for unfair
dismissal after being fired for several
offensive Facebook posts.
The Fair Work Commission upheld his
termination, with deputy president Peter Sams
finding Little’s “grossly offensive” conduct had
seriously damaged both the employer-employee
relationship and his employer’s interests, and so
was incompatible with his duty as an employee
of the organisation.
“The applicant is perfectly entitled to have
his personal opinions, but he is not entitled to
disclose them to the ‘world at large’ where to do
so would reflect poorly on the company,” Sams
wrote in his ruling.
is now their
AARON GOONREY, PARTNER ,
LANDER AND ROGERS
21/8/19 1:44 pm
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