Teen who lost job over 'No' vote has grounds for legal discrimination claim

None
None
None

A Christian teenager who was sacked for saying on Facebook she would vote "no" for same-sex marriage is entitled to make a legal claim under discrimination law, legal experts say.

The 18-year-old who identified herself as Madeline, a children's entertainer who had posted on Facebook that "it's OK to vote No" was sacked for the comments by her Canberra employer Madlin Sims.

Madeline, who said she was "not afraid to stand up for my beliefs", is now entitled to make a claim under section 7 of the ACT Discrimination Act 1991, which includes "political conviction" and "religious conviction" among protected attributes.

Mark Fowler, an adjunct associate professor of Law at the University of Notre Dame, said it was unlikely Madeline would have grounds for a claim of unfair dismissal under the Commonwealth Fair Work Act if she was an independent contract worker, as her former employer has claimed. Had she been an employee, she would likely have had grounds for a claim of unfair dismissal unless she was a new employee under a probation period.

"If it happened in NSW, she would not be protected in terms of her religious belief," he said.

"She has made it known that it is her Christian faith that has motivated her."

Dr Fowler said a Senate inquiry by federal Attorney-General George Brandis in February found that Commonwealth law does not adequately protect religious belief in accordance with Australia's international obligations.

Dr Fowler and associate professor Shae McCrystal from the University of Sydney Law School both said that because the Fair Work Act only applies to employees, a contract worker would not be protected under unfair dismissal provisions.

Dr McCrystal said it did not appear the adverse action provisions under the Fair Work Act would apply to the Canberra teenager either.

Dr Dominique Allen, a senior lecturer in the Department of Business Law and Taxation at Monash University in Melbourne said the ACT Discrimination Act prohibits discrimination on the basis of "political conviction" and "religious conviction", which can be established by an expression of that belief.

For the activity to be political, courts have held that it must "bear on government".

By using the "no" filter on her Facebook profile, Madeline could argue that she was expressing her opinion about same-sex marriage, which is a political matter the government is seeking the public's view on.

"I think a person's view on whether to vote 'yes' or 'no' would be regarded as a political conviction," Dr Allen said.

"The ACT Discrimination Act prohibits direct discrimination against contract workers, which includes not allowing them to continue to work - which is what it seems Ms Sims did when she fired Madeline after seeing the filter she put on her Facebook page.

"So ... yes, think it may be a instance of unlawful discrimination on the basis of political conviction. "There's no exception in the act that would make it lawful."

Graeme Orr, a professor of law at the University of Queensland, agreed Madeline could make a claim on the grounds of discrimination under ACT law.

"She is better off than she would be in most parts of Australia because the Discrimination Act extends to political convictions," he said.

Professor Orr said it was less clear where Madeline would stand under new federal laws against "harm" in the context of vilification and intimidation introduced in the context of the same sex plebiscite.

He said the Madeline's case raised two clashing ideas of freedom - freedom of speech and the freedom of an employer to disassociate themselves from an employees speech.

NSW Law Society president Pauline Wright said the society's policy was that people should not be treated differently under the law solely because of their sexual orientation or gender identify.

"It is also important that the rights we all enjoy including freedom of religion and freedom of speech should remain unaffected by any laws to enable same sex couples to enter a civil marriage," she said. "There should be a respectful debate on this without vilification of anyone."

This story Teen who lost job over 'No' vote has grounds for legal discrimination claim first appeared on The Sydney Morning Herald.