May 27, 2018

Monica Doumit: A contract worker fired for expressing her personal belief? That’s scary stuff

Canberra teenager Madeline was fired after she posted a Facebook profile photo with an ‘it’s OK to say No’ filter during the 2017 same sex marriage debate.

Around a million Australians are contract workers and another 2.3 million or so are casual employees.  Amongst them, they account for about 31 per cent of our workforce.

One of these 3.3 million or so is a Canberra teenager named Madeline.  You might remember Madeline, or at least her story.  In September of last year, she updated her Facebook profile picture to feature the ‘It’s Okay to Say No’ filter developed by the Coalition for Marriage.  Her employer, party planner Madlin Sims, fired her, and took to Facebook to boast that she had done so.

“Today I fired a staff member who made it public knowledge that they feel ‘it’s okay to vote no’,” Ms Sims wrote.  “Advertising your desire to vote no for SSM is, in my eyes, hate speech.  Voting no is homophobic… Freedom of speech is there for a reason and so are consequences,” the post continued.  Ms Sims had dismissed a staff member on the basis of either political opinion or religious belief, and was unapologetic about it.

In the middle of the same-sex marriage postal plebiscite process, Ms Sims’ actions and the boldness with which she proclaimed it on social media made front-page news and further polarised an already polarised debate.

Madlin Sims defended her decision to fire her contractor after learning her views on marriage. Photo: Facebook

Irrespective of how they intended to vote, people wanted to know: could a staff member be fired on the basis of their views on marriage, expressed at a time when the whole country was being invited to have their say?

Last week, some seven months after Madeline lost her job, the Fair Work Ombudsman answered in the affirmative.  It deemed that Ms Sims did not contravene Commonwealth workplace laws or the relevant industrial instrument, and so had no case to answer.

The reason for the decision was that it was not clear whether Madeline was an employee or a contractor.  If Madeline was an employee – either full-time, part-time, or casual with more than 12 months of service – then the Fair Work Ombudsman might have been able to do something to help.

But if she was a contractor, like a million other Australians, or a casual employee with under 12 months’ service, she was on her own.  Not being able to definitively determine which category Madeline fell into, the Fair Work Ombudsman erred on the side of not giving her any rights.

This is scary stuff.

Our contractors and casual employees are not only vulnerable because they lack the protection of our employment laws, but also because their bargaining power is usually a lot lower than those in permanent employment.  For example, many of our young people who are trying to balance work and study would be casual employees or contractors.

Like Madeline, who was 18 years old when she was fired, their ability to obtain permanent work is limited.  Her story will come as a warning to them that they are not as free as permanent employees to express their political or religious beliefs, even on their personal Facebook page.

It seems that when it comes to expressing a belief about marriage, some employees are more equal than others.  Very Orwellian, methinks.

To be fair, employment law is not the only avenue of recourse for young Madeline.  She also has the option of making a claim under the Discrimination Act 1991 (ACT), which prohibits discrimination – including in contract employment – on the grounds of religious belief or political conviction.  NSW residents should note that there is no equivalent prohibition under NSW anti-discrimination law.

Contract workers are not protected against discrimination on the grounds of religious belief or political conviction in this state.  If this case occurred in NSW, the Fair Work Ombudsman’s ruling would be the end of the matter.

But, Madeline is in Canberra and so, if she wanted to, she could make an anti-discrimination claim.

But, going back to my earlier point about the vulnerability of casual and contract workers, is it really fair to require a teenager (or anyone without a stable job) to go take their case to the ACT Civil and Administrative Tribunal just so they don’t get fired for telling people they were voting no?

And what would Madeline get out of it?  The tribunal could force Ms Sims to compensate her for ‘loss’, but how much money would that really be given that Fair Work have already deemed that she was not an employee?  Madeline, like so many others, would probably figure that it would not be worth the fight (and the legal fees), cut her losses and move on.

While the protection for freedom of religion technically exists under anti-discrimination laws in some states only, it’s not fair to ask a teenager to take up the fight for freedom of speech, religion and political belief because successive governments – state and federal – have lacked the political will to do so.

The Expert Panel on Religious Freedom will issue its report in the coming weeks.  What will they have to say about the fact that a million Australian contract workers, and heaven knows how many casual workers, do not have the ability to express a view about marriage – even on their personal Facebook page – without risking their jobs?  Will they have the courage to recommend that our government does more to protect vulnerable workers, or will they too leave the fight up to teenagers like Madeline?

 

 

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