Dis­missal for Dissent?

The recent unfair dis­missal deci­sion of the Fair Work Com­mis­sion, Shaun Turn­er v Dare­bin City Coun­cil [2025] FWC 1763, in which Deputy Pres­i­dent Clan­cy held that the dis­missal of an employ­ee for, among oth­er things, alleged com­ments in response to an Acknowl­edg­ment of Coun­try before a ​‘tool­box’ meet­ing, was unfair, has gar­nered sig­nif­i­cant media atten­tion and turned the Appli­cant (Mr Turn­er) into a cause célèbre in some circles.

While the mer­its of the argu­ments advanced by Mr Turn­er against an Acknowl­edg­ment of Coun­try at the com­mence­ment of tool­box meet­ings (which was a new prac­tice the Coun­cil had adopt­ed) are beyond the scope of this arti­cle, the deci­sion of the FWC as to whether his state­ments war­rant­ed ter­mi­na­tion is worth explo­ration, espe­cial­ly as it offers a guide as to the extent to which employ­ees can ​“dis­sent” from the employ­er on mat­ters that are the sub­ject of polit­i­cal or social debate.

Back­ground

The Appli­cant was a Sweep­er Dri­ver in the City Works depart­ment of the Respon­dent, Dare­bin City Coun­cil (Coun­cil).

The Coun­cil alleged, in an Alle­ga­tions Let­ter, that the Appli­cant, among oth­er things:

“Inter­rupt­ed an Acknowl­edg­ment of Coun­try by mak­ing the fol­low­ing state­ments in a tone that was per­ceived as dis­re­spect­ful, sar­cas­tic and aggres­sive, by stating: 

1. ‘The Acknowl­edg­ment of Coun­try is not nec­es­sary’ and
2. Abo­rig­i­nal and Tor­rens Strait Islanders ​‘do not deserve an acknowl­edg­ment at the start of meetings’ ”.

The Coun­cil ini­tial­ly held a meet­ing as part of the inves­ti­ga­tion process at which the Appli­cant was able to pro­vide a response to the alle­ga­tions (Inves­ti­ga­tion Meet­ing). A Show Cause Let­ter was then issued by the Coun­cil set­ting out the alle­ga­tions relat­ing to the Acknowl­edg­ment of Coun­try, to which the Appli­cant respond­ed as follows:

“Mr Turn­er denied the con­text the Respon­dent had attached to the alle­ga­tions regard­ing the Acknowl­edge­ment of Coun­try, coun­ter­ing with:

1. He had sim­ply ques­tioned why the Acknowl­edge­ment of Coun­try was nec­es­sary because it was the first time it had been done at a tool­box meeting;
2. He did not make the com­ment ​‘they do not deserve an acknowl­edge­ment to coun­try’ and instead had stat­ed ​‘if we need to be thank­ing any­one it’s the peo­ple who have worn the uni­form and fought for our coun­try to keep us free.’
3. He did not adopt a tone that was dis­re­spect­ful, sar­cas­tic, or aggressive.”

On 3 June 2024, the Appli­cant received a let­ter with the head­ing ​“Noti­fi­ca­tion of Ter­mi­na­tion” (Ter­mi­na­tion Let­ter) which noti­fied Mr Turn­er that the Coun­cil had decid­ed to ter­mi­nate his employ­ment with imme­di­ate effect for seri­ous mis­con­duct under its dis­ci­pli­nary procedure.

There was a sig­nif­i­cant error in the Ter­mi­na­tion Let­ter, specif­i­cal­ly that Mr Turn­er had con­firmed dur­ing the inves­ti­ga­tion process that he had made the com­ments out­lined in the Alle­ga­tions Let­ter when, in fact, he had dis­agreed with that ver­sion and pro­vid­ed a dif­fer­ing account.

The Ter­mi­na­tion Let­ter did accu­rate­ly record that the Appli­cant said, dur­ing an inves­ti­ga­tion meet­ing in rela­tion to the Acknowl­edg­ment of Coun­try, that:

“It is get­ting out of hand and peo­ple are los­ing it, it is now being done at the open­ing of a postage stamp. I don’t need to be wel­comed into my own country.”

In the Ter­mi­na­tion Let­ter, the Coun­cil not­ed it had deter­mined that the Appli­cant had breached its Code of Con­duct (Code) and Equal Employ­ment Oppor­tu­ni­ty Pol­i­cy (EEOP). It also assert­ed that the Appli­cant had pre­vi­ous­ly received a Final Warn­ing for the same breach­es of the Code and EEOP and that was a fac­tor in decid­ing to ter­mi­nate his employ­ment sum­mar­i­ly for misconduct.

A key broad­er ques­tion under con­sid­er­a­tion in this case is the extent to which an employ­ee might dis­sent on an issue such as Acknowl­edg­ment of Coun­try in the work­place with­out giv­ing the employ­er a valid rea­son to ter­mi­nate employ­ment for hold­ing and open­ly express­ing that alter­na­tive view.

The Deci­sion

Going to the crux of the issue of whether there was a valid rea­son for ter­mi­na­tion of employ­ment, and offer­ing a guide to employ­ers on the broad­er ques­tion of employ­ee dis­sent, Deputy Pres­i­dent Clan­cy not­ed (at para­graph 89):

“The Respondent’s case against Mr Turn­er on the issue of valid rea­son effec­tive­ly rest­ed on the premise that its employ­ees must, with­out ques­tion, both sub­scribe and adhere to its views when it comes to Acknowl­edge­ments of Coun­try. The propo­si­tion under­ly­ing the Respondent’s case appears to be that there will be a valid rea­son for dis­missal if an employ­ee fails to act in com­plete def­er­ence to their employer’s views and, more­over, does not adopt them. I do not accept this proposition.”

Deputy Pres­i­dent Clan­cy pro­vid­ed fur­ther analy­sis by ref­er­ence to find­ings of fact in the mat­ter (at para­graph 90):

“In the absence of a sin­gle wit­ness to his actions attest­ing to hav­ing felt dis­re­spect, Mr Turn­er was dis­missed because he did not embrace the deliv­ery of an Acknowl­edge­ment of Coun­try at a tool­box meet­ing and instead employed sar­casm when express­ing his opin­ion that Acknowl­edge­ments of Coun­try are at risk of being overused. Mr Turn­er declared both at the Tool­box Meet­ing and when under inves­ti­ga­tion, that Acknowl­edge­ments of Coun­try are war­rant­ed on spe­cial occa­sions. Mr Turn­er did not state that they should not be deliv­ered at the Respondent’s work­places, mak­ing the request that in such cir­cum­stances, he be giv­en the option of not being present when they are tak­ing place. Mr Turn­er also gave a com­mit­ment that he would not dis­rupt Acknowl­edge­ments of Coun­try going for­ward. Mr Turner’s choice of words when seek­ing to explain his posi­tion offend­ed the two employ­ees who were con­duct­ing the inves­ti­ga­tion and dis­ci­pli­nary process on behalf of the Respon­dent, but not, it would seem, the Indige­nous man present as Mr Turner’s sup­port per­son. Offence was tak­en because Mr Turn­er held a con­trary view.”

Deputy Pres­i­dent Clan­cy con­clud­ed (at para­graph 91):

“For the rea­sons out­lined above, I have not been per­suad­ed that any of Mr Turner’s con­duct con­sti­tutes a valid rea­son for the ter­mi­na­tion of his employ­ment or that the Respon­dent can rely upon the final warn­ing it issued on 31 Octo­ber 2023 to advance its case. The absence of a valid rea­son for dis­missal weighs in favour of a con­clu­sion that the dis­missal of Mr Turn­er was unfair.”

Delv­ing into the specifics of this case for a moment, there were some aspects of the process adopt­ed by the Coun­cil that result­ed in the con­clu­sion of the FWC the dis­missal was unfair. These included:

1. Con­clu­sions reached by the Coun­cil about the atti­tude dis­played by the Appli­cant towards indige­nous peo­ple could not be sup­port­ed either by his respons­es in the inves­ti­ga­tion process or evi­dence he gave in the hear­ing of the case before the FWC.
2. The Coun­cil con­tend­ed the Appli­cant had received train­ing rel­e­vant to the con­duct in which he engaged. The FWC con­clud­ed that he had either not received the train­ing as assert­ed by the Coun­cil or any train­ing that did occur was either per­func­to­ry or not robust enough to rely upon for a ter­mi­na­tion in the circumstances.
3. The Coun­cil sought to rely on a pre­vi­ous ​“final warn­ing” to ter­mi­nate employ­ment, to which the FWC found that there was no direct evi­dence before it that sup­port­ed a con­clu­sion that the final warn­ing was sound­ly based and valid­ly issued.

Some Obser­va­tions

There are some gen­er­al obser­va­tions that arise from the case for employ­ers to consider:

• Beware knee jerk reac­tions to a dis­sent­ing view from an employ­ee. The employ­er should not instant­ly regard an expres­sion of opin­ion that does not accord with that of the employ­er as an act of insub­or­di­na­tion war­rant­i­ng ter­mi­na­tion of employ­ment. The pos­si­ble nuances of the sit­u­a­tion need to be iden­ti­fied and explored.
• That said, this deci­sion does not give employ­ees carte blanche to express per­son­al views at any time in the work­place with impuni­ty — much will depend on the sub­stance of the opin­ion expressed, the terms used to express the opin­ion and the nature of the expres­sion (such as it being done respect­ful­ly or in a dis­dain­ful or con­temp­tu­ous tone or man­ner). The deci­sion is not a licence to be a work­place bigot.
• Where an employ­ee is express­ing what might be regard­ed as a ​“polit­i­cal opin­ion”, the recent (very inter­est­ing) case of Lat­touf v Aus­tralian Broad­cast­ing Cor­po­ra­tion (No 2) [2025] FCA 669, in which the ABC was found to have breached the unlaw­ful ter­mi­na­tion pro­vi­sions of the Fair Work Act for ter­mi­nat­ing the employ­ment of Ms Lat­touf because she held a polit­i­cal opin­ion, should be care­ful­ly con­sid­ered. (For the avoid­ance of doubt Lat­touf was an unlaw­ful ter­mi­na­tion case, not an unfair dis­missal case.)
• Dur­ing the inves­ti­ga­tion process Mr Turn­er raised the prospect of being excused from being present dur­ing future Acknowl­edg­ments of Coun­try as part of tool­box meet­ings. In my view, if he had remained employed by the Coun­cil, it is like­ly Mr Tuner could have been required to attend the Acknowl­edg­ment of Coun­try part of the tool­box meet­ing and be direct­ed to remain silent dur­ing it. Just because the ini­tial expres­sion of his opin­ion did not war­rant ter­mi­na­tion of employ­ment does not mean a sub­se­quent direc­tion to attend and remain silent dur­ing an acknowl­edg­ment would have been unrea­son­able. The fact an employ­ee requests to be excused from an event or cer­e­mo­ny with which they do not agree does not nec­es­sar­i­ly mean the employ­er must accede to that request. The employ­ee would like­ly need to demon­strate a gen­uine­ly held con­sci­en­tious objec­tion to insist on being able to abstain from it.