Can employers legally dismiss an employee for “taking a knee”?

#TakeAKnee

October 11, 2017

The world has been following the NFL with keen interest these past few weeks after President Trump called on NFL owners to fire players who refused to stand for the US national anthem and flag before a game – raising interesting questions for us sports-loving employment lawyers.

The “Take a Knee” movement was started in 2016 by former San Francisco 49ers quarterback, Colin Kaepernick, in protest against what he considered to be racial inequality and police brutality against African-Americans in the US.

Since then, more and more NFL footballers have been taking a knee during the US national anthem at games as a form of peaceful silent protest.

In a defiant response to the President’s comments last month, many more players, coaches and owners of multiple NFL clubs chose to take a knee, stand with locked arms or stay in their dressing rooms while the national anthem was sung and flag presented at various football games.

This scenario raises interesting questions about voicing political opinion in the employment context, particularly with regards to the protections offered by Australian laws.

For example, what protections would a player in Australia have if they were sacked for refusing to stand during the national anthem in silent protest or for even using a public forum, such as a game day, to voice their opinions on political issues?

There are a number of laws that protect employees from adverse action or unlawful discrimination by their employer in Australia, including the general protections provisions contained in the Fair Work Act 2009 (Cth) (FW Act).

In particular, section 351 of the FW Act states that an employee is protected from adverse action by their employer if such action is taken because of a protected attribute, including (in most States and Territories) an employee’s political opinion. Political opinion has been found to include a person’s participation in political action, such as a protest.

If a club had decided to fire a player because they engaged in some form of political action – such as taking a knee during the national anthem – the player would be entitled to the protection of section 351 of the FW Act.

It’s also important to note that this protection is not necessarily limited to dismissal from employment. If, for example, a player was stood down from a couple of games or told to play at a lower grade, or was even given less game time because they engaged in some form of political action, this would also constitute adverse action and a breach of the general protections provisions of the FW Act.

The key to accessing the protections under the FW Act is the reason behind the employer’s actions. Consider, for instance, the sacking of SBS sports reporter Scott McIntyre in 2015 after he tweeted what were widely regarded as offensive comments about ANZAC Day. The alleged reason for that dismissal was not his political opinion or his expression of that opinion, but his breach of SBS’ workplace code of conduct and their social media policy.

Political opinions can be divisive, irrespective of industry, position or public attention. Both employers and employees have responsibilities to each other in the employment relationship and the law in Australia seeks to strike a balance between preserving individual rights to political opinion and an employer’s right to take action in response to unacceptable employee conduct or in circumstances where an employee’s actions damage the employer’s reputation or brand.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Court temporarily reinstates employee pending adverse action claim

BRB

The probation period is commonly used by employers to assess the suitability of an employee for ongoing employment. One of the reasons that the probation period is of benefit to employers is because, when aligned with the minimum employment period set out in the Fair Work Act 2009 (Cth), it allows an employer to end the employment relationship before an employee becomes entitled to protection from unfair dismissal.

October 22, 2024

Blogs

“Bad Blood” - Adverse Action and Unfair Dismissal

In the wake of challenging economic circumstances and increasing episodes of poor employee behaviour, employers may be required to make difficult, but necessary, decisions in relation to its workforce.

August 8, 2024

Events

Employer successfully rebuts presumption in adverse action claim

Return to sender

An employer has successfully defended an adverse action claim brought by a former employee as the court was satisfied that the employee was not dismissed for a prohibited reason.

June 19, 2024

FWC finds that employer dismissed employee who refused to sign new employment contract

Black space

In its simplest form, an employment contract is a legally enforceable document between two parties where there is an offer and acceptance to be bound by its terms and conditions. Where an employment contract has been signed, it cannot be unilaterally changed by one of the parties – there must be agreement by both parties.

January 22, 2025

Blogs

Account Manager ordered to pay $500,000 to former employer

Find My Phone

A decision of the Federal Court of Australia early last year has provided support to employers who find themselves in the unfortunate position of suffering loss and damage as a result of an employee’s breach of their post-employment restraints.

January 8, 2025

Blogs

FWC finds safety critical employee’s drug use amounted to a valid reason for dismissal

Bad track record

In safety-critical workplaces, it is essential that employers not only have in place robust safety standards and policies but also that they regularly enforce them and penalise infractions appropriately.

January 8, 2025

Resources: Blogs

#TakeAKnee