Where do we draw the line between legitimate expression of political opinion and the need to comply with an employer directive not to make adverse comment about their values or support for particular causes? Each case is dependent on the facts, of course, but employees should be allowed to endorse or advocate for human rights issues that are of national or international significance. For example, endorsing an Amnesty International campaign about the human rights abuses being committed in Gaza. Or supporting self-determination for Indigenous Australians. Such an exercise of freedom of speech is vastly different to criticising your boss, or complaining about fellow employees.
Given the importance of the right to freedom of expression, employees should only be sanctioned if their public commentary breaches anti-discrimination or hate laws, or if it can be said to directly harm their employer’s reputation. A case of the latter might be to accuse the employer of supporting racism in the workplace. While that might be the case, it is reasonable that the employee raise the issue with the employer or in an appropriate legal forum.
So, given what we have seen in the Gillham and Lattouf cases and more generally about the weakness of the position of employees in the political advocacy space, is there a model that would strike a fairer balance?
South Africa has one of the most rights-oriented constitutions in the world, including the right to freedom of speech. This means, as legal academics Jean Chrysostome and Osman Bantu, noted in 2022, that while “the contract of employment has always been regarded as the foundation of a relationship between the employers and employees, it does not allow companies to violate workers’ right to express their views and thoughts in or outside the workplace in social media. A simple reality is that citizens, including workers, have the right to freedom of expression.”
Employers can and do sack employees in South Africa for social media posts or emails that are derogatory, racist or damage the employer. But the main difference between that country and here is that in a dispute an employee can legitimately defend themselves by arguing their constitutional right is a relevant factor.
Another reason for controlling and even prohibiting employers from taking action to prevent their employees from exercising freedom of speech is because personal and professional lives are often blurred, particularly among younger people. They will protest and advocate on their personal social media accounts and some of those posts will be done during work time.
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Navigating the balance between freedom of speech for employees and the rights of employers is complex. It raises issues not only of the right to freedom of speech, but also the employee’s right to privacy and to not be discriminated against for political opinion. A balance can be achieved if, despite the lack of constitutional protection in Australia, employers’ guidelines and contracts with employees recognise the right to speak about social and political issues so long as they do not contravene the employers’ values.
Freedom of speech is a fundamental human right and one that should inform the balance between employees and employers. The South African model would offer a better starting point, so that freedom of speech is a primary consideration when concerns are raised about statements made, or posts liked by employees on a contentious political or social issue.
Greg Barns SC is a barrister who practises in criminal law.