Following the death of American political commentator Charlie Kirk, US Vice President JD Vance urged the public to report individuals who appeared to be celebrating the incident. Major world events like this are increasingly prompting employers to consider how to respond when an employee publicly expresses personal views that don’t align with the company’s values, workplace harmony or corporate reputation.
The situation raises an interesting question as to the limits of employees’ personal rights to personal expression and the implications on the employment relationship. This article examines the rights of employees to express personal opinions and clarifies when employers can lawfully and reasonably intervene.
The legal framework
Australia does not have an explicit constitutional right to freedom of expression, except for an implied freedom of political communication, which restricts government power not private employment relationships. While employees can express personal opinions, this right is limited by their duties of loyalty, confidentiality and good faith to their employer.
An employer cannot discriminate against an individual based on their political opinions, beliefs or activities.
Private employers can regulate employee’s out-of-hours conduct, including online speech, if the behaviour impacts the workplace.
Managing employee free speech
Investigate fairly
Where an employee expresses a personal or political opinion which does not reflect the organisation’s values or conduct expectations, an employer should conduct an investigation into the alleged conduct. It can, at times, be tempting to act immediately, particularly given that the employee’s opinion may have been published online or expressed in writing. It is however important to carefully consider the circumstances and provide an employee with an opportunity to respond to the allegations before a decision in relation to the employee’s ongoing employment is made.
Consider appropriate disciplinary outcomes
When determining appropriate disciplinary action, employers should balance the employee’s right to personal expression against any legitimate business needs, such as brand protection, client relationships and workplace safety. This can be a delicate exercise, and an employer must have regard to whether the conduct would be protected by anti-discrimination laws.
An employer should also have regard to the seriousness of the conduct and weigh up all the factors including whether the conduct was threatening, hateful or incited violence.
Consider the risks of termination of employment
If considering termination of employment, it is important to assess the risks, including the potential for an unfair dismissal or general protections claim.
Whether a dismissal is considered harsh, unjust or unreasonable will depend largely on whether the employee’s conduct provides a valid reason for dismissal. Typically, expressing a political opinion of outside work hours will not qualify, unless there is a clear connection to the workplace.
Case law [1][2] provides that such a connection might exist if the employee’s behaviour:
- negatively affects the employer’s relationships with clients or staff;
- has an adverse impact on other employees;
- impedes the efficient operation of the business;
- impacts the employee’s capacity to perform their role; or
- demonstrates incompatibility or conflict with the employment relationship.
In those circumstances, conduct that might typically be regarded as private may become relevant to the workplace and justify dismissal. For example, if an employee publicly advocates violence against a particular group of people, this may be sufficiently connected to the workplace. Conduct that poses a risk to respectful working relationships may be work-related and provide grounds for dismissal.
On the other hand, civil expressions of contentious political opinions are less likely to demonstrate an adverse impact on the business.
Importantly, the conduct must clearly be connected with the employment, and employers cannot simply rely on reputational harm or hypothetical impacts without having reliable evidence.
The Federal Court recently clarified in Lattouf v ABC (No 2) (2025) [3] that political opinions shared on personal social media outside work hours are protected, provided they do not breach a clear, lawful and reasonable workplace policy or conflict with the employee’s role.
Key takeaways for employers
- Procedural fairness is essential – always investigate alleged misconduct thoroughly and allow employees to respond before acting.
- Employers can discipline employees for the expression of personal opinions where such conduct has a clear, negative impact on the workplace or business operations.
- Ensure that any disciplinary action does not breach anti-discrimination laws and is not harsh, unjust, or unreasonable under the Fair Work Act 2009 (Cth).
[1] 314 IR 22.
[2] FWCFB 201.
[3] 341 IR 105.
The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.