On 30 January 2024, two Black Star Pastry Bakery employees wore Keffiyehs – a traditional scarf linked to the struggle for a Palestine state – to work. On that day, the company’s HR department ordered that the workers remove their scarves while working and they complied. However, while wearing the scarf at work, a customer took a photo of the workers and shared it on social media, tagging the company and shopping centre location. The next day their employment was terminated with immediate effect.
The matter was lodged with the Victorian Civil and Administrative Tribunal in March and is scheduled for mediation later this month.
Protection of a Political Belief or Activity
Equal Opportunity Act 2010 (Vic)
A protected attribute under section 6 of the Equal Opportunity Act 2010 (Vic) (the EO Act) is political belief or activity. Section 7 of the EO Act states discrimination can be direct or indirect on the basis of an attribute. Discrimination against employees occurs when an employee is dismissed or otherwise terminated from employment (s 18(b) EO Act).
Fair Work Act 2009 (Cth)
Under section 27 of the Fair Work Act 2009 (Cth) the EO Act is not excluded, therefore both acts can be applied to the same matter.
Section 351 prohibits employers from taking adverse action against employees because of a person’s political opinion. Furthermore, employment is not to be terminated on certain grounds, including political opinion (s 772(1)(f) FWA).
Political opinions at work
In Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37 (13 March 2020) where an employee had criticised the Commonwealth Government twice to a media outlet and was later terminated, it was held he was not dismissed for expressing this opinion. Rather, the dismissal was for the breaches of company policy and failure to follow reasonable business instructions. The court noted the employee could have still held and expressed his political opinion usings means other than the media, in breach of the employer’s media policy, and still exercised his workplace rights.
In Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 Mortimer J observed at [55] that “for an employer to act adversely to an employee’s legitimate interests on the basis of the employee’s political opinion is conduct to be censured in the strongest terms.” And, in Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557 at [29] Marshall J remarked that ‘rights are a shell unless respected.’
The anti-discrimination prohibitions included in the FWA bring a broad range of workplace conduct into line with the general requirements of anti-discrimination law and the court will ensure employees’ rights are protected.
What can employers do if they don’t want employees displaying their political opinions while at work?
Employers who seek specific behaviours from their employees while at work should ensure their expectations are well documented and communicated to their employees. For example, a uniform policy could ensure employees are presented for work in a certain way. If employers want communications with customers or clients to be performed in a particular way, this too should be well communicated with the expectations of employees made clear.
How the complaint of Black Star Pastry will resolve remains to be seen. However, this case is a good reminder for employers to exercise caution when dealing with a matter that may attract protection of a political opinion.
For more information or if your business needs assistance with workplace policies please contact our Employment Law team at Longton Legal.
Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to change. You should seek independent legal advice before embarking upon any course of action.
