ADF decision to terminate employment of officer for homophobic comments published on social media did not amount to unfair dismissal.

In Issue

  • Whether the decision to terminate the service of an ADF officer was invalid by reason of the implied constitutional freedom of political communication.

Background

In January 2013 Mr Bernard Gaynor (Gaynor), who as engaged as a Major in the Australian Defence Force (ADF) made a series of public comments in a blog published on his personal web page and various social media accounts about a transgender officer. Gaynor’s comments included statements to the effect that he would not let homosexual people teach his children and that it was not correct for the ADF to allow their members to march in the Sydney Gay & Lesbian Mardi Gras in their uniforms. Gaynor further criticised the government and the ADF’s policy regarding the conflict in Afghanistan and expressed the view that Islam was linked to a culture of violence which posed a threat to Australia.

The ADF formally warned Gaynor not to make any further comments of an offensive nature and to remove his controversial posts. Gaynor refused and continued to publish press releases incorporating material from his website. Consequently, in July 2014 the ADF exercised its power under Regulation 85 of the Defence (Personnel) Regulations 2002 to dismiss him. Gaynor commenced proceedings against the ADF challenging his dismissal.

Decision at trial

The Federal Court held that the decision to dismiss Gaynor was void on the basis that it conflicted with Gaynor’s implied freedom of political communication which was not displaced by Gaynor’s publications being at variance with ADF or government policy. The ADF appealed this decision.

Issues on appeal

Whether the primary judge erred in finding that the appellant’s decision to terminate Gaynor infringed his implied freedom of political communication.

Decision on appeal

The Full Court of Appeal (Court of Appeal) held that the Federal Court had erred in interpreting the ‘freedom of political communication’ as an individual ‘right’, rather than a constraint on the exercise of legislative power.

The Court of Appeal summarised the purposes of Regulation 85, noting amongst other matters that the regulation served as a disciplinary purpose as well as maintaining the effective functioning of the defence force, and, ensured the maintenance of objectively appropriate standards of behaviour and conduct of their officers.

It acknowledged that whilst Regulation 85 was capable of ’impairing’ the implied freedom of political communication, the rationale for the restriction was directed at assessing suitability of individuals to remain officers in the ADF.

The Court of Appeal found that in extreme circumstances the restriction of the freedom of political communication is justified and held that the ’…circumstances of Gaynor’s comments’ and his refusal to accept and adhere to orders made by the ADF, were extreme. Therefore, any harm to his freedom of political communication was outweighed by the need to reserve the power of the ADF to terminate individuals whose conduct and behaviour placed them in a category where their continued presence in the ADF was regarded as sufficiently serious.

The Court of Appeal concluded that although the scope of Regulation 85 was wide, it was confined by the objects and purposes of the statutory scheme which justified the burden it imposed on the implied freedom of political communication. The appeal by the ADF was allowed.

Implications for you

Employers may, in certain circumstances, terminate an employee for the making of social media comments in a private capacity where those comments are extreme and unacceptable in accordance with the position the employee holds. However, the circumstances of each individual case will first need to be considered taking into account the nature of the employee’s employment and applicable policies.