Which case won?

casea
The case for the employee
  • I was not on duty when I expressed the opinions I did. The army can only discipline a soldier for something done on duty.
  • My opinions are informed by my religious beliefs. As part of the Commonwealth government, the army cannot interfere with my right to the free exercise of religion.
  • Under the Constitution I have a right to freedom of political expression.
  • The army’s decision to sack me for expressing religious or political beliefs is unconstitutional.
  • The army applied its internal processes incorrectly in deciding to dismiss me.
caseb
The case for the army
  • The employee’s conduct had brought the army into disrepute.
  • ADF had clearly articulated and publicly promoted policies encouraging gender diversity and inclusiveness, which the employee had publicly derided and rejected.
  • This was made worse by the fact that the employee identified himself as an army officer when he did so.
  • The employee disobeyed direct orders to cease the conduct we had complained about.
  • We applied our internal procedures correctly. We had no choice but to dismiss an employee who was a loud, persistent and vehement critic from within our own ranks, and who would not stop expressing intemperate homophobic views publicly when ordered to do so.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
a32%
b68%

Expert commentary on the court's decision

Geoff BaldwinConsultant Lawyer
"In an age of rapidly expanding social media usage, what conduct of an employee, on social media and in non-work time, can be taken into account in relation to employment status?"
Free exercise of any religion and freedom of political expression

In the case Chief of the Defence Force v Gaynor [2017 ] FCAFC 41, the ADF was the ultimate winner, but not easily.

In the Federal Court, the judge at first instance found for the employee, striking down the army’s decision to terminate his services. The dismissed soldier had relied on the fact that under section 116 of the Constitution, the Commonwealth government is prohibited from (among other things) interfering with the free exercise of religion, or imposing any religious requirement as a test for holding public office.

The employee had argued that to the extent that the army’s processes derived from Commonwealth legislation, he could not be sanctioned for expressing his views, which were informed by his Roman Catholic (or any other) religion.

The dismissed employee had also relied on the findings of the High Court, notably in Theophanous v Herald & Weekly Times and Lange v Australian Broadcasting Corporation, that the Constitution contains an implied freedom of political expression, because the electoral process prescribed by the Constitution can only work as intended if people are free to express opinions about matters of political interest.

Upholding the employee’s argument about freedom of political expression, the judge decided that the army was unjustified in dismissing him.

Initial judgment in favour of employee overturned on appeal

However, on appeal by the ADF, it was held that the trial judge had overstated the nature of the “right” of political expression enjoyed by the employee.

The Full Court reversed the original decision, stating that the army had acted lawfully when it issued a direct order to the employee to stop publishing offensive and homophobic views publicly and to remove such material from his social media sites.

The Full Court determined that the army had a right to stop conduct by one of its officers which was damaging to the cohesion, morale, authority and reputation of the army and the ADF generally. Further, the army was entitled to dismiss its employee for disobeying its direct orders.

Growing challenge for employers in an age of social media

In one way, this case is not representative of employment situations generally. It is long-established law that the employment of members of the military does not depend on contract, but on commission from the Crown. Additionally, the constitutional arguments involved here would not ordinarily be available to an employee.

In another way, however, the case illustrates a steadily growing challenge for employers. In an age of rapidly expanding social media usage, what conduct of an employee, on social media and in non-work time, can be taken into account in relation to employment status? Where is the line drawn between conduct as an employee, and private conduct? What tests should be applied to determine if conduct is employment-related or not?

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