Folau, take note: High Court backs boss in social media sacking

Israel Folau and his backers may now need to take stock.
Israel Folau and his backers may now need to take stock.

It was established by the High Court this week that an employer has the right to sack workers for making social media posts the employer doesn’t approve of, even when those posts are made in workers’ own time, under anonymous pseudonyms.

This is a win for business and government — the employer in this case. It is now clear that a boss has the right to insist on loyalty and compliance from the people they pay money to.

The applicant to the court was a public servant who had posted anonymous tweets that were not to her employer’s liking.

The dismissal case, from 2013, has been winding its way through the legal system since. The applicant, Michaela Banerji, had a law degree and represented herself, but her efforts came to an end when a full bench of seven judges ruled against her. The decision comes when the issue of social media posts has been a matter of public debate.

Many people may feel otherwise, but I feel the ruling is sensible and just. And although this case relates to government as an employer, it is in line with many rulings in the past decade relating to cases in the private sector.

Here it is: although it would be wonderful to be given money with no strings attached, the right to receive an income comes with responsibilities, too.

Those responsibilities can extend to after-hours social media posts that are public or private and made under fake names. As the High Court ruled, even anonymous posts carry the “risk of ceasing to be anonymous”.

Any social media post an employer doesn’t approve of, on whatever subject, for whatever reason, can be used as a justified reason for dismissal. Naturally, any boundaries must be clear for all to follow, before the offending posts being made.

Let it be clear, this decision is not a blow to free speech. All Australians have the right to freedom of expression, including on social media. We can all waste precious seconds of our limited existence on the internet, saying pretty much whatever stupid and pointless thing we want to say. We can rant and rave on Twitter about the idiots on the left or the idiots on the right. We can ignore our loved ones while we argue with anonymous dropkicks from the other side about the political topic of the moment. Instead of taking the dog for a walk, we can sit on Facebook and like videos of people taking their dogs for a walk. We can criticise our boss for making us work overtime, we can post inane memes on Instagram, telling various types of people they are going to hell. We can even post pictures of ourselves lying naked and drunk in the gutter if we want.

But we cannot do any of those things at the same time as demanding ongoing employment and an income from an employer who doesn’t want us to do them. This position is reasonable, surely.

When taking money from an employer, we must comply with all terms and conditions the money comes with. We must act in a way that does not clash with the employer’s values. None of us has the right to take an employer’s money and defy some of those terms and conditions, or speak publicly against their values, simply because we think our unique and personal belief system gives us the right to do so.

Perhaps now Israel Folau, his legal team and the backers from the Australian Christian Lobby might take stock.

Although it gives me no joy to say this, and it is only my personal opinion, which comes from decades of experience with many hundreds of unfair and unlawful dismissal cases, these people are pushing a legal barrow without wheels up a mountain without a top.

Ever since the case broke, madness has broken out. Those on Folau’s side have made the most curious and illogical arguments. Those who normally rail against the unfair dismissal system being too much on the side of workers have taken the opposite position, with bewildering logic.

Then there have been those screaming from the rafters about taking this fight all the way to the High Court. The High Court, though, doesn’t automatically hear the cases of everyone who wants to go before it. Legal experts estimate only about 5 per cent of applicants are even granted a hearing, because the High Court sits when an important area of law needs clarification.

There is a human cost to any legal process, too. It is not fair to any applicant for hangers-on to encourage dismissal claims that have no reasonable prospect of success. Despite the lucrative fees and the political mileage, there is a person and a family to consider.

The impact of ongoing exposure to lawyers can be catastrophic on one’s sanity, even when the fees are paid by others.

Sometimes it is better to realise there are better fights to be had to prove your point, and put down your sharpened sticks, wipe off the war paint, go to the table and settle.