In an interesting case about the distinction between the expression of free speech in one’s own time and the expression of it in and via the workplace, a Full Bench of the Fair Work Commission has upheld the sacking of an employee who disseminated an anti-Muslim e-mail by publishing it vis his employer’s e-mail system. The tribunal said that while the employee was “no doubt entitled to hold views of the nature articulated in the email, the expression and propagation of those views in the workplace by the use of the employer’s computer and email system is a different matter”.
It said there were constraints on freedom of speech even outside the workplace, citing the Federal Court’s Eatock v Bolt ruling and noting that the Queensland Anti-Discrimination Act made religious vilification by any “public act” unlawful, and “it has been held that it is arguable that an email sent to a large number of persons is a public act”.
The Full Bench continued by saying that within the workplace, the express terms of the employment contract and employer policies and lawful and reasonable directions could also impose further “significant constraints”.
It said it was “well established that it is lawful and reasonable for an employer to require an employee to comply with policies and directions which control the nature of communications over the employer’s electronic communications system”; and “objectively inappropriate and offensive communications by an employee in the workplace may, depending on the circumstances, constitute a valid reason for dismissal”.
According to the tribunal, Thiess’s workplace conduct policy required employees to treat each other with dignity, courtesy and respect and specifically prohibited religious vilification.
Accordingly the Full Bench dismissed the employee’s appeal against the original decision to the effect that the company had a valid reason for dismissal but that in the particular circumstances of the employee’s employablity elsewhere the dismissal was harsh and that compensation should be ordered in lieu of reinstatement.
Anderson v Thiess Pty Ltd (2015) FWCFB 478 delivered 30 January 2015