The same-sex marriage postal survey has been promoted as a chance for all Australians to have their say — but recent events show speaking up too loudly could be fraught.
At the beginning of this week a children’s entertainer named Madeline lost work with a Canberra-based party business, after posting on Facebook that “it’s OK to vote no”.
The business’s owner Madlin Sims cited concerns Madeline could be working around LGBTI kids or parents and said she was not aiming to stifle free speech.
So if you know your views go against those of your employer, or someone you have a business relationship with, what are your rights? And how safe are you from being shown the door?
What’s your employment status?
In the case that’s been in the headlines this week, Madeline was not a direct employee of Madlin’s business.
Instead, she was a contractor who billed the company for services — namely dressing up as characters for kids’ parties.
There are overlapping laws around the country designed to protect people from discrimination at work, though the specifics vary from state to state.
As a contractor, Madeline was not covered by unfair dismissal laws that protect employees.
But in the ACT, where the dismissal took place, those are not the only thing protecting people from being sacked for their political views.
“It’s not really a matter of unfair dismissal laws as such, but rather anti-discrimination laws in the ACT,” Canberra-based employment lawyer John Wilson says.
“The Discrimination Act of the ACT applies to contractors as much as it does to employees and prevents them from being discriminated against because they’ve expressed political opinions.”
There are similar acts around the country — and you can check how far the law goes in your state.
So I can say whatever I want, wherever I want?
Not quite. There are some instances where your employer has an interest in what you post online.
John says that if your Facebook or other social media accounts link you to your employer, they may have some grounds to request that you refrain from political activism.
“Unless there is a clear connection between that platform and her work, it’s not lawful to terminate them or otherwise treat them adversely because they’ve expressed a political opinion,” he said.
“The way the case law is playing out is that where your Facebook or social media advertises you as being connected with your employer, you do need to be careful about expressing particular views.”
So according to John, provided your Facebook account is private and does not advertise your ties to your workplace, you’re safe to say whatever you want about same-sex marriage, or any other political topic.
This is of course provided the opinions are not so extreme as to breach anti-vilification laws introduced for the duration of the postal survey.
In the case of Madeline and Madlin, the business owner cited among her reasons for the sacking that: “[Madeline] had posted representing the business on the same platform — the Facebook page where this frame was shared.”
But it’s not clear what role that would play in any future determinations about the case.
So did anyone break the law?
At the end of the day, the only way to determine that is in the courts, but whether the case makes it that far is another matter.
The Fair Work Ombudsman is also investigating the case.
In John’s opinion, business owner Madlin likely has a case to answer under discrimination law but she remains confident in her actions.
“My concern was not about her religion or her personal beliefs, and that’s something that I made clear from the start,” she said.
“What it was was a concern for the wellbeing of children.
“I had genuine belief that she was someone who wouldn’t … be able to perform in the job that we signed her up for with gay families.”