Company owner defends decision to fire worker over same-sex marriage views, despite the risk to her “business and integrity”

A legal expert has warned businesses to ensure they write down and communicate social media policies, following a Canberra business operator’s decision to end an employment relationship with a contractor after she posted views opposing the legalisation of same-sex marriage on Facebook.

The ABC reports the contractor says she was “in complete shock” after she was let go from her role as a children’s entertainer for Canberra party business Capital Kids Parties because she had uploaded a Facebook filter over her profile picture on August 29, stating it was “ok to vote no” in the current marriage equality postal vote.

The employer has stated her own position on the case, which has since blown up on social media, explaining via a Facebook post that she views voting no in the postal survey as homophobic, and something that could have negative implications for the reputation of her business.

The employer, Madelin Sims, said on social media that there were “prior conversations” that led to the dismissal of the worker, and told the ABC that when the Facebook filter was noticed, her younger brother, who was friends with the worker, asked her to remove it from her profile.

Sims claims the worker refused and was aggressive towards her brother, explaining to the ABC’s Hack program that while the worker’s support for the “No” campaign was subtle, she won’t tolerate any such views from employees.

In a further post on Facebook yesterday, Sims said she “risked my business and my integrity doing this but I don’t really give a shit because I can wake up tomorrow and marry any bloke I want”.

SmartCompany contacted Sims and her business a number of times this morning but did not receive a response for further comment prior to publication.

SmartCompany was unable to contact the employee for comment. However, in an interview with Andrew Bolt, the worker said she’s still “sitting on” a decision about whether to take further action.

Social media policies critical

Managing director of Workplace Law Athena Koelmeyer says in general, there are several things employers must keep in mind before dismissing a staff member for their personal views on political issues.

“It’s about making sure you make it clear to employees as to what is and isn’t acceptable on social media, and the other thing is [being aware of] adverse actions, because people are entitled to their opinions,” she says. 

Businesses should take care on these issues because there is a potential that a worker could bring an adverse action claim against a business if they believe their personal beliefs were the cause of a dismissal. If that is found to be the case, it could breach the worker’s protections under the Fair Work Act, Koelmeyer says.

However, employers do have scope to limit what their employees write or communicate in public forums, including on their personal social media accounts, she says.

“That’s where the clear social media policy comes into play,” Koelmeyer says.  

Employers should ensure they have outlined and communicated to their employees what they can and can’t share online. There could be some cases in which the personal communications of workers come into conflict with how a business operates or its reputation, Koelmeyer says, but it is critical these areas are expressed in a clear policy.

“For people working for all kinds of organisations, they could want to make sure their employees either say nothing or meet a line,” she says. 

“People are entitled to their views, it’s just whether they’re allowed to express these in a public forum.”

Businesses could find themselves facing future disputes if they make decisions based on their workers’ political beliefs, Koelmeyer says. However, the communication of these beliefs could breach workplace policy if the company has a “nice, clear social media policy” in place, she says. 

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