The recent White Supremacist rallies that occurred last week in Charlottesville, Virginia shocked the world. Following the horrific demonstrations that took place, a Twitter account called @YesYoureRacist began soliciting identities of rally attendees through social media. This strategy ultimately resulted in one man losing his job in Berkeley, California. Surprisingly, these actions resulted in public shaming towards his employer, not the employee. So, this begs the question: Can you fire an employee for participating in Hate Groups?
While the United States is a different story, in Australia, the short answer is “Yes”.
However, like anything that involves social media and Australian employment legislation, it’s complicated. Here are the reasons why:
Limited Free Speech
Unlike the US, the Australian Constitution does not protect the right to freedom of speech or freedom of expression. The only exception applies our election candidates during an election period. This means that employees do not have the right to say whatever they like outside of work hours. Therefore, employees can be held accountable and persecuted for things they say during or outside of work hours.
“Good faith” to the employer
In Australia, employees have a right of ‘good faith’ to their employer. This means that an employee has a duty to their employer to not do anything outside of work hours that could bring disrepute to the face and brand. However, without expressed contractual restrictions, this may only apply when an employee’s face and name is linked to the brand of the business. For example, if an employee lists on their social media page the company they work at, they are linked to that company. So, if an employee with clear links to the employer is actively posting racist and offensive comments on a Neo-Nazi Facebook group, there may be reasonable grounds for termination.
Inciting Racial Hatred
Any for form of communication inciting racial hatred, including offence or humiliation due to race, is illegal in Australia. An example of this law in action is the Andrew Bolt case, where he sued for writing an article that accused “fair skinned” aborigines of choosing their racial identity to get certain benefits. Therefore, if an employer participated in a White Supremacist rally, or wrote anything on social media that would classify as racial hatred or offend the general public, this behaviour could be illegal.
In summary, yes, you can fire an employee for participating in Hate Groups. The only caveat is that you must be able to prove that they are linked to your brand or in breach of an expressed contractual clause. For that reason, we recommend including in employment contracts a clause stating employees cannot engage in offensive and racist activity outside of work hours. That way if an employee ever is prosecuted for any sort of offensive speech, you are in every right to fire them without receiving any negative backlash for standing up against racism and bigotry.
Answers to questions are often more complex than they sound. Our Telephone Advisory Service line is available 24/7 to provide quality advice and protect brand’s reputation. To learn more, contact us or give us a call at 1300 345 875