No remedy for ABS employee terminated after sharing anti-lockdown post on LinkedIn

No remedy for ABS employee terminated after sharing anti-lockdown post on LinkedIn

The Federal Circuit Court has dismissed a claim by an employee alleging that the Australian Bureau of Statistics (ABS) took adverse action against her when it terminated her after she shared anti-lockdown material on her LinkedIn profile during the height of the COVID-19 pandemic in 2021 (Skelton v Australian Bureau of Statistics [2023] FedCFamC2G 89). The Court concluded that the employee was not terminated because of her political opinion, and therefore the dismissal did not contravene s. 351 of the Fair Work Act 2009 (Cth) (FW Act).

Background

The Applicant was a casual field officer employed with the ABS. In August 2021, she shared an image on her LinkedIn profile, which claimed that medical experts were opposed to government lockdowns and set out alleged adverse societal impacts of lockdowns. The post was accompanied by the caption, ‘It’s time to STAND UP AUSTRALIA. AUSTRALIAN REVOLUTION NOW!’

The post came to the attention of the ABS when a member of the public threatened to report the post to their local member of parliament and news agencies. Several days after the post was first made, the ABS emailed the employee to explain that the post was contrary to the ABS social media policy and might cause people to question the impartiality of the ABS.

During communications between the ABS and the employee, the employee was rude, aggressive and unwilling to accept that she had contravened ABS workplace policies.

The ABS subsequently terminated the Applicant’s employment.

The Court proceedings

The Applicant claimed that she was terminated for reasons including her expression of political opinion in contravention of general protections under ss. 8 and 351 of the FW Act.

The ABS claimed that there were only two reasons for the termination of employment:

  1. The Applicant’s post on LinkedIn, which:
    1. incited revolution against government lockdowns; and
    2. endorsed a political message while identifying the Applicant as an ABS employee, contrary to ABS policy; and
  2. The Applicant’s subsequent emails to her manager were inappropriate, aggressive, and disrespectful and gave the ABS no confidence that she understood its policies and expectations of workplace behaviour moving forward.

In the correspondence that followed, the Court accepted that the employee’s communications with her employer were aggressive, rude and disrespectful. This included:

  • her repeated use of capitalisation;
  • a generally hostile tone;
  • an unwillingness to accept that she had contravened the ABS social media policy; and
  • sustained criticism of the manager’s behaviour.

The Court accepted the ABS's view that this behaviour reflected disregard and disrespect for the relevant manager, the ABS and its policies.

Court dismisses the employee’s claims

The Federal Circuit Court dismissed the employee’s claims. The Court accepted the ‘consistent’ evidence from the ABS that the two reasons (referenced above) were the only two reasons for the Applicant’s dismissal.

The decision-maker’s evidence showed that the ABS was not concerned by the content of the employee’s political opinions and would have responded in the same manner whether the employee’s post was pro-lockdown or anti-lockdown. This conclusion was supported by ABS’s concern that damage to public perceptions of impartiality might threaten the ABS’s special permissions and ability to conduct the 2021 census.

Mansini J, therefore, determined that the employee was not terminated for her political opinion [63]:

‘I conclude that Ms Skelton was not terminated for having a political opinion. The expression of her political opinion bore no more than an association with the reasons for her termination – and only to the extent of Ms Skelton’s conduct in choosing to post her political opinion in a manner that breached the terms of the ABS Code of Conduct and Social Media Policy.’

The Court emphasised that this outcome was consistent with case law in this area which maintains that a termination decision does not need to be ‘entirely dissociated’ from the protected activity (in this case, holding a political opinion) and simply must not be a ‘substantial and operative factor’ for the termination (citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37).

Mansini J emphasised that this did not mean that ABS employees are prevented from holding or expressing political opinions altogether [66]:

‘Just as the Court observed in Rumble, it was open to Ms Skelton to modify her behaviour by adhering to the Code of Conduct and Social Media Policy and still to have held and expressed her political opinion on LinkedIn or indeed other social media and communication platforms.’

Notably, the ABS also indicated that adding a disclaimer to the post (for example, that the post represented the employee’s personal views and not those of the ABS) would have lessened the gravity of the misconduct. This was not an issue considered by the Court, so it is unclear whether this would have prevented the employee’s termination.

What does this mean for employees?

This decision continues a line of authority that provides that an employee’s behaviour on social media, which has the capacity to damage or threaten an employer’s reputation, may provide grounds for termination.

In the context of public service employers, this principle has been extended to capture the posting of political opinions on social media because this behaviour undermines perceptions of the employer’s political impartiality (eg. see Comcare v Banerji [2019] HCA 23).

This case also highlights that the mishandling of disciplinary processes can drastically change their outcome. In this instance, the employee’s inability to accept or show remorse for her misconduct, coupled with her rude and aggressive dealings with management, were material factors in her eventual termination.

Get help from an employment lawyer

This case serves as a reminder to employees of the value of seeking advice from your union or an employment lawyer during disciplinary processes. At Hall Payne, our award-winning employment lawyers can assist you with any issues or concerns you are having in the workplace.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au

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  This article relates to Australian law; either at a State or Federal level.

The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.


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