‘Free speech’ can be a confusing topic under Australian law, and it can get even more complicated when it comes to the workplace.
Over the past year, debates around freedom of speech have come to the forefront as communities grapple with COVID-19 misinformation and a contentious US election. While social media has borne the brunt of these battles, and the ire of those who believe the likes of Facebook and Twitter are silencing them, workplaces are not immune to these heated debates.
In recent years, there have been several highly publicised Australian cases arguing for the right to freedom of speech for employees, notably within academia.
Just last year, the federal court overturned a ruling which stated James Cook University had acted unlawfully in dismissing lecturer Peter Ridd who had publicly expressed his views on climate change.
The judges presiding over the case found that Ridd’s enterprise agreement did not give him the right to express professional opinions beyond the standards imposed by the university’s code of conduct. Ridd was originally awarded $1.2 million in compensation when he first took the university to court in 2019. Just a few weeks ago, it was confirmed that Ridd would appeal this recent decision in the High Court.
A case like this reminds us that free speech isn’t as clear cut as we’d like to think, especially when it comes to what can and can’t be said in the workplace. So what does HR need to understand about free speech? And when does it apply to employees?
Free speech in Australian law
Some people think of the First Amendment in the US Constitution when it comes to free speech in Australia. But ‘free speech’ isn’t codified in Australian law the same way it is in the US.
“What we have is an implied constitutional freedom in relation to our political communication or political speech, but that’s fairly limited in its scope,” says Michael Byrnes, partner at law firm Swaab.
Implied freedom of speech means that Australians don’t have free reign to say what they wish, but they do have certain protections. Political speech is protected from criminal prosecution but not private prosecution, such as a civil lawsuit.
Implied freedom of speech has little sway within the private sphere. For example, it’s entirely lawful for social media platforms to delete your posts, or for event organisers to cancel someone’s speaking spot at their own discretion. It also means employees can’t claim freedom of speech if they say something their employer feels is inappropriate.
“There isn’t necessarily a protection that employees have, in relation to things that are said at work. It’s more a case of, if an employee says something, does an employer have a right to take action against them?” says Byrnes.
The answer depends on how ironclad your workplace policies are.
Free speech in the workplace
Most workplaces will have a code of conduct that limits an employee’s right to say anything another employee would deem offensive, particularly remarks that could be considered discriminatory.
“Employees can’t just cite this nebulous notion of freedom of speech as some sort of ‘get out of jail free’ card,” says Byrnes.
“If an employee makes statements that are racist, sexist, or homophobic, etc, even if they haven’t caused offence to someone in particular, the employer would have the right to take disciplinary action against the employee. The employee owes it to the employer to conduct themselves in a particular way.”
Where things get tricky is when the statement or remarks are more ambiguous.
“There is such a thing as discrimination on the basis of political opinion. If an employee expresses support for a particular political organisation, assuming the group isn’t an extremist organisation, an employer couldn’t feasibly discipline them just because they hold an opposing view.”
However, this doesn’t mean an employer can’t reasonably ask employees to restrict discussion on particular topics.
For example, some people hold strong views on vaccines, a topic very much in the public consciousness at the moment.
“An employer may want to say to an employee, ‘This is a contentious topic. You’re entitled to your views, but we ask you not to vent them in the workplace’.
“If they don’t follow that request, and it could be demonstrated that by airing these views that employee was causing disquiet or undermining morale in the workplace, then there could be a case for disciplinary action.”
When can an employer take action?
If an employee hasn’t explicitly breached the code of conduct, in order for an employer to have a solid case against an employee who has spoken publicly about issues that go against the organisation’s values, they would need to prove the employee’s actions harmed the employer in some way, says Byrnes. That could amount to financial or reputational damage.
An example could be an employee who posts offensive or controversial comments on social media. If the employee’s social media account identifies them as an employee of XYZ organisation, Byrnes says XYZ organisation could reasonably claim the employee’s actions damaged the reputation of the employer. But that identifying link does need to be made.
Let’s say an employee attends a protest supporting an opinion incompatible with the interest of their employer.
“I would say, if the employee was arrested and drew negative attention to themselves and their employer, maybe the employer could argue that damage was done to their reputation.”
In any instance where an employee says or does something that could be considered damaging to the organisation, a proper investigation needs to take place before disciplinary action is taken.
Byrnes says HR should raise the issue with the employee in the first instance because there is always the possibility they were misheard or misunderstood.
“It could be a cultural reference or an allusion to something and not have been intended to be harmful or offensive.”
The employee should always be given an opportunity to respond. Not only is this a chance to clear up any misunderstanding, but it may also inform the steps you take next. Perhaps the employee is completely unaware of the impact of their actions – in which case, they might just need a refresher on your code of conduct.
“Having heard and considered the employee’s side, it would then be on HR to decide whether or not disciplinary action is appropriate. It may well be that a warning is required, but if the employee continues that conduct, termination could be justified.”
If an employee says something offensive in the workplace, you might need to investigate the matter. In that case, AHRI’s short course Investigating Workplace Misconduct could help.