No remedy for ABS employee terminated after sharing anti-lockdown post on LinkedIn

Updated 19 March 2025

The Federal Circuit and Family Court of Australia has dismissed a claim by an employee alleging that the Australian Bureau of Statistics (ABS) took adverse action against her when it terminated her after she shared anti-lockdown material on her LinkedIn profile during the height of the COVID-19 pandemic in 2021 (Skelton v Australian Bureau of Statistics [2023] FedCFamC2G 89). The Court concluded that the employee was not terminated because of her political opinion, and therefore the dismissal did not contravene s. 351 of the Fair Work Act 2009 (Cth) (FW Act).

Background

The Court’s reasons for judgment note the following.

The Applicant was a casual field officer employed with the ABS, and that in August 2021, she shared an image on her LinkedIn profile, which claimed that medical experts were opposed to government lockdowns and set out alleged adverse societal impacts of lockdowns. The post was accompanied by the caption, ‘When is enough, enough? ‘It’s time to STAND UP AUSTRALIA. AUSTRALIAN REVOLUTION NOW!’

The post came to the attention of the ABS when a member of the public threatened to report the post to their local member of parliament and news agencies. Several days after the post was first made, the ABS emailed the employee to explain that the post was contrary to the ABS social media policy and might cause people to question the impartiality of the ABS.

The ABS alleged that, during communications between the ABS and the employee, the employee was rude, aggressive and disrespectful.

The ABS subsequently terminated the Applicant’s employment.

The Court proceedings

The Applicant claimed that she was terminated for reasons including her expression of political opinion in contravention of general protections under 351 of the FW Act.

The ABS claimed that there were only two reasons for the termination of employment:

1. The Applicant’s post on LinkedIn, which:
   1. incited revolution against government lockdowns; and
   2. endorsed a political message while identifying the Applicant as an ABS employee, contrary to ABS policy; and
2. The Applicant’s subsequent emails to her manager included a range of communication that was inappropriate in a workplace context, reflected a disrespect for the organisation and its management and were inconsistent with the ABS Values.

The Court accepted the ABS view that this behaviour reflected disregard and disrespect for the relevant manager, the ABS and its policies.

Court dismisses the employee’s claims

The Federal Circuit Court dismissed the employee’s claims. The Court accepted the ‘consistent’ evidence from the ABS that the two reasons (referenced above) were the only two reasons for the Applicant’s dismissal.

The Court accepted that the decision-maker’s evidence showed that the ABS was not concerned by the content of the employee’s political opinions and would have responded in the same manner whether the employee’s post was pro-lockdown or anti-lockdown. Mansini J, therefore, determined that the employee was not terminated for her political opinion [63]:

“I conclude that Ms Skelton was not terminated for having a political opinion. The expression of her political opinion bore no more than an association with the reasons for her termination – and only to the extent of Ms Skelton’s conduct in choosing to post her political opinion in a manner that breached the terms of the ABS Code of Conduct and Social Media Policy.”

The Court emphasised that this outcome was consistent with case law in this area, which maintains that a termination decision does not need to be ‘entirely dissociated’ from the protected activity (in this case, holding a political opinion) and simply must not be a ‘substantial and operative factor’ for the termination (citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37).

Mansini J emphasised that this did not mean that ABS employees are prevented from holding or expressing political opinions altogether [66]:

‘Just as the Court observed in Rumble, it was open to Ms Skelton to modify her behaviour by adhering to the Code of Conduct and Social Media Policy and still to have held and expressed her political opinion on LinkedIn or indeed other social media and communication platforms.’

What does this mean for employees?

This decision continues a line of authority that provides that an employee’s behaviour on social media, which has the capacity to damage or threaten an employer’s reputation, may provide grounds for termination.

In the context of public service employers, this principle has been extended to capture the posting of political opinions on social media, because this behaviour undermines perceptions of the employer’s political impartiality (eg. see Comcare v Banerji [2019] HCA 23).

This case also highlights that the mishandling of disciplinary processes can drastically change their outcome. In this instance, it appears that the employee’s inability to accept or show remorse for her misconduct, coupled with her dealings with management, were material factors in her eventual termination.

Get help from an employment lawyer

This case serves as a reminder to employees of the value of seeking advice from your union or an employment lawyer during disciplinary processes. At Hall Payne, our award-winning employment lawyers can assist you with any issues or concerns you are having in the workplace.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au

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