The world was shocked by the recent White Supremacist rally that occurred in Charlottesville. Afterwards the identities of certain protesters was released on social media, which led to one man losing his job. However, this action led to the employer receiving backlash online, not the employee. Therefore this begs the question: Can you fire an employee for participating in Hate Groups?
While the United States the answer may be different, in Australia, the short answer is “Yes”.
Despite this, like many things involving social media and the laws regarding employment in Australia, it can be quite complicated. Here are the reasons why:
Limited Free Speech
Unlike in the United States, the Australian Constitution doesn’t protect someone’s right to freedom of speech and/or expression. The only allowance to this applies to election candidates during election period when discussing election topics. Therefore, outside of work hours employees do not have the right to say whatever they feel. This means employees can be held accountable and even prosecuted for what is said during or outside work hours.
‘Good Faith’ to the Employer
In Australia, all employees have the right of ‘good faith’ to their employers. This means that employees have a duty not to do anything outside of working hours that could potentially bring disgrace to the face and overall brand of their employer.
For example, if an employee lists the company they work for on social media, they are linked to that company. Therefore, if an employee with clear links to a company is actively posting offensive or racist posts on a Neo-Nazi Facebook group, this could be grounds for termination.
Inciting Racial Hatred
It is illegal in Australia for any form of communication to incite racial hatred, including offence or humiliation because of race. Therefore if an employee was a part of a White Supremacist rally or wrote anything on social media that could be deemed to be racial hatred or offend a racial group, would be considered illegal.
For example, Andrew Bolt was sued for writing an article where he accused “fair skinned” aborigines of choosing their racial identity in order to receive certain benefits.
Therefore, in summary, yes you can fire an employee who is participating in Hate Groups. However, you must be able to prove that they are linked to your brand or are in breach of contract. Therefore, for this reason, it is recommended to include a clause stating that employees cannot participate in offensive or racist activity outside of working hours, in employment contracts. This way, if employees are ever prosecuted for any form on offensive speech, you have every right to fire them without receiving any form of backlash.