Religion is getting pushed further out of the public eye after a number of lawsuits have ruled that employers are able to punish or dismiss employees for displays of religious affiliation or belief.
In Australia, a long-running case between Bernard Gaynor and the Australian Defence Force has finally come to an end, with the Federal Court of Australia handing down a judgement upholding Gaynor’s dismissal from the Army Reserve following inflammatory comments he made on social media.
In 2013, Gaynor – a conservative Catholic and at the time a Major in the Army Reserves – was involved in three separate incidents that led to his eventual termination as a Reservist.
It all began with a tweet in January 2013 that read, “I wouldn’t let a gay person teach my children and I am not afraid to say it.”
“…even if MAJ Gaynor did not think his remarks to be inflammatory or inappropriate, the broader community had a different view.” – Lt. Col. Buxton
After this, he was counselled by Lieutenant Colonel Buxton to “make no further comment of a similar kind which might associate him with the ADF.”
Buxton also added that “even if MAJ Gaynor did not think his remarks to be inflammatory or inappropriate, the broader community had a different view.”
When he disobeyed the order to “make no further comment,” by making public statements criticising ADF policy, Gaynor was told by the Deputy Chief of Army, “effective immediately, you are to cease posting material in the public domain that identifies you as an Army officer.
“It is not my intention to prevent you from having an opinion, but when that opinion is linked to your military service and is fundamentally inconsistent with Defence policy and values, you should reconsider your employment options.”
After a further incident with a transgender officer, Gaynor was terminated.
Gaynor claimed that he was free to make the comments as he was not active, nor on duty, at the time he posted them.
General David Hurley, the then Chief of Defence, said in the termination letter, “In making these findings, I distinguish between your holding of a personal opinion, the mere fact of which I do not consider necessarily inconsistent with the standards required of Defence members, and your conduct in expressing personal opinions publicly in an inappropriate and disrespectful manner, in circumstances that identify you as a member of the Australian Army Reserve.
“I emphasise that this decision is not about beliefs or faith. It is about your personal conduct whilst a member of the Army Reserve. Defence recognises that different views exist, but demands tolerance and respect in order to preserve ADF capability,” said Hurley.
After being terminated, Gaynor launched an appeal, claiming that he was free to make the comments as he was not active, nor on duty, at the time he posted them, and that his comments were protected by the implied freedom of political communion.
A single judge (Buchanan J) of the Federal Court ruled in 2015 that the comments were protected by the implied freedom of political communion, but last week, the full court of the Federal Court (Perram, Mortimer & Gleeson JJ) overturned that decision, upholding the initial termination.
“…it certainly paints people – particularly people in the public service – into a difficult situation.” – Neil Foster
Neil Foster, a law professor at Newcastle University, told Eternity, “there’s an overarching constitutional principle of an implied freedom of political speech that exists in our systems of government. In an appropriate case, it would override regulations issued by the Army.”
This case highlights the growing tension between the rights of an individual person to express their own ideas and the right of the employer to tell their employees what they are and are not allowed to do.
Foster suggests that it might point towards a decreasing “tolerance of employees saying unpopular things.
“The High Court has said on a number of cases that there’s this freedom there that Australians should generally be free to make comment about political matters, but the decision [in Gaynor] shuts down comment in a particular area.
“It doesn’t necessarily make a radical change to the law but it certainly paints people – particularly people in the public service – into a difficult situation.”
Overseas, the trend continues.
In 2010, the French government almost unanimously passed a bill to ban face-covering Islamic veils in public places, allegedly to protect women’s rights.
Presenting the law to the Senate, iustice minister Michèle Alliot-Marie said, “The full veil dissolves a person’s identity in that of a community. It calls into question the French model of integration, founded on the acceptance of our society’s values.”
The ban came into effect in 2011, and Belgium followed suit the same year. The Netherlands introduced a partial ban in 2015 (it is banned on public transport and in public areas such as schools and hospitals, but not on the street).
Dismissal of the employees did not consist of “direct discrimination” if the firm had an internal rule “prohibiting the wearing of any visible sign of political, philosophical or religious beliefs.” – EU judgement
But in Belgium and France, employers are taking the ban one step further by firing Muslim women for refusing to remove their headscarves in their places of work.
The European Union’s Court of Justice has ruled that European companies may forbid staff from wearing Islamic headscarves along with other visible religious symbols.
In passing down the judgement, the EU Court said that the dismissal of the employees did not consist of “direct discrimination” if the firm had an internal rule “prohibiting the wearing of any visible sign of political, philosophical or religious beliefs.”
Richard Shumack, a research fellow for the Centre for Public Christianity, says, “The ruling is essentially saying it’s okay for any company to have the right to project a religiously or politically neutral image. Obviously this makes commercial sense – companies want to appeal to as wide a market a possible. It also seems to make legal sense. There do seem to be any number of situations in which companies sensibly have the right to limit the freedom of choice of an individual – especially with regard to things like clothes (e.g. uniforms).
“…if this ruling makes social sense then its a very bad sign that there are very great stress lines running through the social fabric of Europe right now.” – Richard Shumack
“[But] the key question for me is whether it makes social sense. We need to ask things like ‘Why is it so important for companies to project a religiously “neutral” image? Just what is the risk involved for a company if someone wants to wear a cross necklace or a headscarf?’
“Another question is whether these sorts of religious ‘symbols’ are significant in this context. I’d argue that in the majority of cases they pretty obviously aren’t.
“But here’s where my school yard illustration comes in. Just like in the situation where balls were banned in the playground due to the extremely rare anti-social carelessness of a few footy players, this seems to be an example of a perfectly reasonable behaviour being banned due to the extremely rare anti-social ideology of some Muslims. It could be argued in both cases it’s an overreaction, but in any case they both reveal the stressed state of the social climate.
“In short then, if this ruling makes social sense then its a very bad sign that there are very great stress lines running through the social fabric of Europe right now.”More