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

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.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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