By Dan Trindade and Matt Condello of Clayton Utz.
An employee’s personal ability to express his or her own political views is not protected by the implied constitutional freedom of political communication.
It would be a miracle if everyone in an organisation agreed with each other on the ideal morning tea snack, let alone politics. Given this, can an employee be fired for the “wrong” political opinion? The recent case of Chief of the Defence Force v Gaynor  FCAFC 41 teases out the interaction between an employee’s political views, the employer’s interests in running its organisation, and the implied constitutional freedom of political communication.
The implied right of freedom of political communication
The High Court has developed the implied right to freedom of political communication in a number of high-profile cases.
The key thing to understand is that this is not a personal right that each person enjoys (such as, for example, a right set out in the US Bill of Rights).
Instead, it is a limitation on the power of the legislature to prevent it exercising its functions in a way that curtails freedom of political communication. The test to determine whether this has occurred is:
- Does the law effectively burden freedom of political communication about government or political matters in its terms, operation or effect?
- If so, is the law reasonably appropriate and adapted to serve a legitimate end?
Mr Gaynor’s conduct
Over the last few years, the Defence Force has instituted a number of policy reforms dealing with the lesbian, gay, bisexual, transgender and intersex community, and women serving on the front line.
Mr Gaynor, a Major in the Army Reserve, personally disagreed with these changes. Through various social media accounts and press releases, he posted comments that were critical of these policies, and of the Deputy Chief of Army. When viewing some of these comments, it was obvious that Mr Gaynor was a member of the Army Reserve. The comments continued to be made even after Mr Gaynor was instructed by the Deputy Chief of the Army to stop.
Following an investigation, Mr Gaynor’s service was terminated pursuant to the Defence (Personnel) Regulations 2002 (Cth). The basis for the termination was that Mr Gaynor had publicly criticised Defence Force policy, had exhibited behaviour contrary to Defence Force policies and cultural change initiatives, and continued to make public comments after being instructed not to.
Mr Gaynor succeeded at first instance, a decision that was overturned by the Full Federal Court. He then sought (but was refused) special leave to appeal to the High Court.
The Full Federal Court: not every government action is limited by the freedom of political communication
By refusing Mr Gaynor special leave to appeal the High Court has effectively allowed the decision of the Full Federal Court to stand.
The Full Court of the Federal Court has confirmed again that the right to freedom of political communication is not a personal right. Therefore, the only way a dismissal can be challenged is to challenge the law that underpins the dismissal decision. In this case, the relevant law was the Defence (Personnel) Regulations 2002 (Cth).
The Full Court found that the Regulations could effectively burden freedom of political communication, because they exposed officers who communicate views that are inconsistent with Defence Force policy to the risk of dismissal. Mr Gaynor’s argument fell at the second limb of the test: the purpose of the Regulations was reasonably appropriate and adapted to serve a legitimate end, in that it provided a tool to terminate the service of individuals when the Chief of the Army was satisfied it was not in the interests of the Defence Force, or in the interests of the Army, for the individual to be retained.
This satisfaction could be formed on the basis of behaviour ‒ in this case, said the Court, that behaviour was not so much the content of the communication as its tone and attributes, “together with the way it is linked to the ADF and to any contraventions of instruction, policies or practices of the ADF”.
The law therefore did not infringe the right to freedom of political communication, and the dismissal stood.
An employee has limited ways to challenge a dismissal on freedom of political communication grounds
The first lesson to draw from the Gaynor case is that an employee’s personal ability to express his or her own political views is not protected by the implied right. The focus is on the power given by legislation and whether the legislation itself is limited by the implied right.
That means the main impact of the decision will be on statutory employers. They should take some comfort from the fact that decisions, taken under an enactment or subordinated legislation, cannot be challenged on this basis. The employee must challenge the authorising legislation itself (the jury is still out on how, if at all, the implied freedom curtails executive action not taken under an enactment).
This case does not mean that a statutory employer can lawfully and fairly dismiss an employee merely because that employee holds a personal view different to the employer’s stated policies. Both statutory employers and private employers must still comply with other laws, and it could be open to the former employee to claim that the termination was adverse action taken because of their political opinion, which is contrary to section 351 of the Fair Work Act 2009 (Cth)).
The Gaynor case does however confirm that publicly ridiculing your employer’s policies while identifying yourself as an employee, and continuing to do so after being instructed not to, can lead to dismissal, and the Constitution is not likely to assist the employee to challenge this.
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This article originally appeared on the Clayton Utz website and has been reproduced with permission.