April 2017

No room for hate in the workplace

It was a surprise when a Federal Government Minister recently criticised corporations on supporting same-sex marriage saying “it is unacceptable that people would use companies … to throw their weight around”.  Aren’t companies supposed to be good corporate citizens contributing to a better society?  The reality is that many employers have corporate social responsibility programs that support (and “throw their weight behind”) a range of causes, not just same-sex marriage.

As employers have causes and views, it is also legitimate for employees to hold personal views on matters of public discourse.  Appropriate social discussion on matters of public interest by all contributes to the richness of debate and democracy.

There can, however, be a conflict and tension between an employee’s personal views and an employer’s corporate social initiatives and public perception. 

This gives rise to a difficult question:  can employees express their personal views contrary to the views promoted by their employer or in a manner that reflects negatively on the employer?  In this bulletin we look at a recent case that explored the disciplining of an employee for expressing his views on sexuality on social media, in defiance of his employer’s wishes. 

Chief of the Defence Force v Gaynor [2017] FCAFC 41

The Australian Defence Force (ADF) over recent years has undertaken a deliberate process of cultural change to encourage tolerance, greater diversity and gender equality.  The ADF wanted a change within the ADF and publicly.  As part of that process it allowed its gay and lesbian personnel to attend and march in uniform at the Sydney Mardi Gras.  This cultural change upset a member of the ADF, Mr Gaynor, who was a Roman Catholic.

Mr Gaynor’s social media accounts readily identified that he was a member of the ADF.  Mr Gaynor was seeking a seat in the Senate and engaging in public debate on matters of sexuality, marriage equality and religion.  A conflict arose with his personal beliefs and the ADF’s corporate approach.

Amongst other things, Mr Gaynor posted strong personal views against homosexuals and Islam on his Twitter and Facebook pages.  These actions were despite the ADF’s social media policy instructing “personnel must not post material that is offensive towards any group or person based on personal traits, attributes, beliefs or practices that exploit, objectify or are derogatory of gender, ethnicity or religion” (ADF emphasis in bold).  Mr Gaynor breached the policy directive with his postings.

The policy of the ADF might be open to criticism for its breadth and failure to differentiate between work and out‑of‑work conduct.  It could be argued that employers have no right to broadly regulate employee conduct when not at work.  Certainly, that has been the approach in America taken by the National Labor Relations Board.

The ADF skilfully avoided this debate.  Rather than take disciplinary action for a breach of policy, the ADF issued Mr Gaynor a direction to “cease posting material in the public domain that identifies you as an Army Officer”.  The ADF did not wish to censor Mr Gaynor’s personal views, rather it did not want those views to be associated with the ADF.  Mr Gaynor however did not remove his association with the ADF from his social media accounts.  Mr Gaynor was subsequently dismissed.

At first instance, the Federal Court of Australia held that Mr Gaynor’s dismissal infringed the implied freedom of political communication.  On appeal, the Full Federal Court took a different view.

In Australia, there is no broad freedom of speech like in America.  However, a limited form of communication is protected, namely communication about government or political matters.  Laws must not burden that freedom unless it is reasonably appropriate and necessary to do so.

There was little doubt that the power of the ADF to dismiss Mr Gaynor burdened the implied freedom to communicate on political matters.  The prospect of dismissal put a price for such communications.  The real issue was whether a broad discretion to dismiss was suitable, necessary and adequate in balance with such a freedom to communicate.

The Full Federal Court was conscious of the need for the ADF to issue commands to its officers, and for those commands to be followed.  “The need to demonstrate capacity and willingness to operate in a hierarchical environment, even at times of disagreement, is critical”, the Court said.  The ADF needs to know that its officers will follow its commands without question, including in times of conflict.  Mr Gaynor demonstrated a refusal to follow the lawful commands of the ADF.

The Full Court observed the broad power of dismissal is not to control personal communications but rather to ensure the suitability of individuals for continued employment.  The power of dismissal focused on the behaviour and conduct of Mr Gaynor, and not his personal views.  The Full Court concluded that “the ability to terminate the service of individuals whose conduct and behaviour places them in a category where their continued presence in the ADF is assessed to be sufficiently serious”, must exist.  As Mr Gaynor refused to follow lawful commands, the Court found his dismissal was valid.

Lessons

Workplaces involve human interaction and relationships with others.  We all work with colleagues of diverse backgrounds and beliefs.  Our personal views, if expressed widely, may impact on colleagues and workplace cohesion.  Extreme and provocative comments (seen by colleagues) can have an adverse impact on the workplace and other employees.  

We may oppose same-sex marriage or not.  Our colleagues may have different views or be of a different sexuality.  There is a need to be tolerant and respectful of different views and a colleague’s personal circumstances.  Expressing hateful, vitriolic and offensive views are not contributing to public debate but rather only destroying relations and adding unnecessary tensions at work. 

An employer may also have a number of corporate social responsibility initiatives.  It is legitimate to expect an employee would not act in a manner to bring the company and its initiatives into disrepute.  Extreme views may affect corporate reputation, particularly where businesses promote involvement in social initiatives.  It would certainly not be a wise move to publicly vilify a person as a “spastic” if your employer supports a disability service provider.  A business supporting White Ribbon would not want an employee advocating violence against women.

Personal views can be held, but there is a time and place for their expression and expressed in an appropriate manner.  Extreme comments and views, publicly made (like on social media), risks an impact on the business, the workplace and colleagues.  Viewed in this light, shouldn’t employers be commended for prohibiting hateful material “based on personal traits, attributes, beliefs or practices that exploit, objectify or are derogatory of gender, ethnicity or religion”?

 

Author: James Mattson