Can Cotton On dismiss 'egg woman'?

An edited version of this post was published in The Conversation, 10 May 2019: Egging the question: can your employer sack you for what you say or do in your own time?

The New Daily reports that clothing retailer Cotton On is investigating the conduct of Amber Holt, who attempted to ‘egg’ the Prime Minister on the campaign trail in Wodonga earlier this week.

Holt sought to draw attention to human rights issues with the egging, but has been charged with offences including common assault.

So what does this have to do with her employment at Cotton On? It seems that as Holt was visibly wearing a Cotton On Kids lanyard during the egging, the company considers she may have breached her obligations as an employee.

Expressing its disappointment about the incident, Cotton On told The New Daily: ‘While individuals are entitled to hold their own opinions, we do not condone this behaviour and it does not align with our company values.’

An ‘investigation’ means that Holt is facing the very real prospect of being dismissed. Can Cotton On do that?

The legal position

Australian employment law requires that an employee cooperate with their employer, and not engage in any conduct that would undermine the business or bring it into disrepute. These are terms implied into every employee’s contract of employment by the common law. Over the last 30 years or so, the courts have increasingly interpreted these principles to enable employers to control the private or out-of-hours conduct of employees.

Workers could therefore find themselves lawfully sacked for untoward behaviour at a work Christmas party, or posting derogatory comments about the business on Facebook – if the employer can show there is a sufficient connection to the employment. That connection will exist where, for example, the drunken party behaviour impacts upon relationships in the workplace (or constitutes sexual harassment) – or where the ‘private’ Facebook post damages the employer’s reputation.

Employers have sought to extend the common law obligations of employees through company policies and codes of conduct. Typically, these documents impose very high standards of employee behaviour in a wide range of situations. The employer is then able to discipline or dismiss employees for behavioural breaches, even outside the workplace or work hours, especially where (as is common) the employee has signed a contract in which they agree to observe company policies.

Recent examples   

In the last five years we have seen many examples of the collision between ‘corporate values’ and employees’ right to a ‘private life’.

In 2015, SBS dismissed soccer journalist Scott McIntyre for tweeting a series of comments critical of Australia’s obsession with the Anzac legend. His Twitter account identified him as an SBS employee, and he had over 30,000 followers. He was swiftly sacked for expressing ‘disrespectful’ comments which breached the public broadcaster’s code of conduct and social media policy.

McIntyre contested his dismissal in the Fair Work Commission, arguing that he had a legal right to express a political opinion and had been discriminated against for exercising that right. However the case settled so we didn’t get a ruling on the important issues: did the tweets amount to ‘political opinion’, and if they did, do the discrimination law protections trump employer policies?

More recently, the Federal Circuit Court found last month that James Cook University had unlawfully dismissed a physics professor, Peter Ridd, for his public comments critical of climate change research carried out by the University and his colleagues. This case was a bit different though, in that the Court decided Ridd’s position was backed up by his right to intellectual freedom under the University’s enterprise agreement (a common feature of academic employment). 

Later this year the High Court will consider an appeal by Comcare against an Administrative Appeals Tribunal ruling that former federal public servant, Michaela Banerji, was unfairly sacked when she was dismissed for (anonymously) tweeting comments critical of the Australian Government’s immigration policy. The AAT determined that Banerji’s right to make such comments was protected by the implied constitutional freedom of political communication. Her dismissal therefore constituted unlawful administrative action. Seeking to control the anonymous political comments of a departmental employee was likened by the AAT to George Orwell’s ‘thoughtcrime’ in 1984.

In 2017, the Australian Public Service Commission issued a new social media policy which was widely criticised for intruding excessively on the right of government employees to engage in free speech.

And of course we’re now witnessing the Israel Folau case. A Rugby Australia panel this week decided he breached the players’ contract through his social media posts critical of homosexuality. It is yet to decide on a penalty but if he’s sacked, I can definitely see this one being challenged, Folau arguing discrimination on the basis of his religion.

What will happen in egg woman’s case?

Cotton On’s employee code of conduct is not publicly available – possibly in response to the adverse publicity it received in 2015, when it was revealed that its code required employees to ‘keep it real’ and observe other company values like being ‘fun’, ‘ethical’ and ‘entrepreneurial’ (as reported in the Sydney Morning Herald).

However I expect it will include sufficiently broad language to enable the company to establish that Holt has engaged in misconduct that has damaged its public reputation. An important factor here is that she is alleged to have engaged in high-profile, criminal behaviour. She may try to argue that she was expressing political views, protected by discrimination law, but this doesn’t look like the right ‘test case’ to win that argument.

On the other hand, the steady march of employer policies controlling employees’ private conduct is more likely to be halted where there are clear protections of employee free speech (e.g. academics). Unfortunately most of the Australian workforce is not covered by these protections.