SpaceX fired five staff for an open letter slamming Elon Musk. Can Australian businesses do the same?

SpaceX has reportedly sacked a group of staff members for writing an open letter slamming CEO Elon Musk as an “embarrassment” to the company, with management claiming the terminations were a consequence of pressure placed on fellow employees to sign it.

The open letter stated that Musk’s “personal brand” was “a frequent source of distraction and embarrassment for us, particularly in recent weeks”, but after it circulated, the company took action and fired five employees.

Staff were told of the terminations via an internal memo from SpaceX president Gwynne Shotwell, who said the open letter had “made employees feel uncomfortable, intimidated and bullied, and/or angry because the letter pressured them to sign onto something that did not reflect their views”.

With recent staff discord aired at Nine Newspapers following the international fallout over the revelation of Rebel Wilson’s new same-sex relationship, it begs the question: can you fire someone for writing an open letter that slams the workplace or leadership?

In Australia, it would be a “risky proposition”, employment lawyer Wesley Rogers, of Marque Lawyers, says.

“All employees are covered by the general protections provisions in the Fair Work Act 2009, which acknowledge and protect employees’ right to make complaints or inquiries in relation to their employment,” he continued.

“Whether criticism of management is caught by that protection will depend on its content but there is certainly scope for it.”

However, Rogers points out general protection provisions don’t mean staff can say whatever they want without any risk of consequence.

For instance, Rogers says, take the 2012 case between Bendigo TAFE and a union-member employee — the employee had emailed around to fellow union members at his workplace with allegations the TAFE had engaged in fraud.

Management found out, and he was suspended. So the employee brought a general protections claim, arguing he was treated adversely for engaging in union activity — another protected right.

Unfortunately, the High Court disagreed.

“It believed the employer when it argued that the disciplinary action was taken due to the inappropriate nature of the email and its potential consequence, and not because of his union membership, office or activities,” Rogers continued.

But what if it wasn’t an issue related to the union, just a plain old open letter smearing management?

In that case, Fay Calderone, a partner at Hall and Wilcox, says the first question management must ask is three-pronged: does the conduct cause damage to the relationship with the employer, the employer’s interest or is it incompatible with the employee’s duties?

If not, sacking a vocal employee can spell bad news for a business, she says. For instance, a worker took a baker called Angie’s Cake Emporium to the Fair Work Commission in 2016 after she complained about the workplace on Facebook and promptly got the sack.

But the commission erred on the side of the worker in finding she was unfairly dismissed as she argued, because the comments she made weren’t found to be seriously harmful to Angie’s Cake Emporium.

It gets even more murky when a worker is in the public sector, Calderone continues, like someone sharing criticism of the government on social media.

There was a 2019 case where a worker posted over 9000 anonymous tweets criticising her employer, the Department of Immigration and Citizenship. She was discovered and fired, but took the dismissal all the way to the High Court.

“She claimed that the dismissal was an unjustified burden on her right to freedom of political communication and was unlawful,” Calderone said.

“However, the High Court rejected this, also noting that anyone who posts material online, particularly on social media, should assume that at some point his or her identity and the nature of his or her employment will be revealed.”

The upshot?

“We have the right to complain, but we need to exercise that right appropriately,” Rogers said.

Plus, Calderone added, before doing anything an employer should consider whether an employee’s criticisms “include an expression of their political view, and the extent to which the employer can act on this”.