The rise of viral scandals involving employee conduct has become a defining feature of the digital age, where private actions are swiftly amplified into public controversies, directly impacting professional reputations. This phenomenon compels a deeper examination of professional boundaries, accountability, and the far-reaching consequences of misconduct, blurring the line between personal expression and workplace responsibilities.
A striking recent example is the Bankstown Hospital incident, where two nurses were suspended after a viral video captured them making antisemitic remarks, such as refusing treatment of Israelis and stating they will “kill” Israeli patients, while wearing identifiable NSW Health uniforms. The video sparked public outrage and legal scrutiny, with Health Minister Ryan Park condemning their actions as “vile, disgusting, and appalling.” This provides a critical lens within which to explore the legal dimensions of workplace misconduct, employee rights, and employer obligations under Australian employment law.
Types of Misconduct: Understanding Where This Incident Falls
Workplace misconduct is often classified by severity and impact:
General Misconduct: Minor policy violations, such as lateness or inappropriate language. Typically, general misconduct does not form grounds for immediate termination, as employers will often remedy such misconduct by issuing warnings and, where appropriate, conducting training.
Serious Misconduct: Defined in Fair Work Regulation 1.07 as conduct that is willful or deliberate and inconsistent with the continuation of the employment contract. Such conduct can include assault, theft, or any behaviour that causes serious risk to the health and safety of others. Serious misconduct can often form grounds for suspension and/or termination.
The Bankstown incident will likely constitute serious misconduct, given the extreme patient safety risks and significant reputational harm to NSW Health.
The Importance of Procedural Fairness: Why Were the Nurses Stood Down, Not Terminated?
Following public outrage over the nurses' remarks, many were shocked or confused as to why these nurses were only stood down and not yet formally terminated. As stated by Health Minister Ryan Park during his interview with ABC News, it is extremely important that before any action can take place, a “thorough”, “diligent” and “careful” investigation must first be conducted to ensure procedural fairness and avoid employer liability for unfair dismissal claims. Mr Park emphasised that procedural fairness was critical to prevent any potential appeals or give these “individuals a shed of light” for the possibility that they may assume further employment in the New South Wales hospital system. To minimise legal risk when handling employee misconduct, employers must:
Ensure Procedural Fairness: Follow a transparent and just process when addressing misconduct. Failure to uphold procedural fairness can expose the organisation to unfair dismissal claims under the Fair Work Act 2009 (Cth).
Apply Consistent Discipline: Disciplinary actions should be applied uniformly across all employees for similar misconduct. Inconsistent enforcement of policies can lead to claims of discrimination or bias.
Document Every Step: Maintain comprehensive records of the investigation, meetings, and outcomes. Detailed documentation not only supports decisions but also serves as evidence in the event of legal disputes or regulatory scrutiny.
This structured approach not only protects employers, such as NSW Health, from potential legal challenges but also reinforces fairness, transparency, and accountability in workplace management.
Employee Protections Under Australian Employment Law
Notwithstanding the above, employees are entitled to important protections under Australian employment law, ensuring fair treatment during disciplinary actions and investigations. These protections include:
1.Protection from Unfair Dismissal: Under the Fair Work Act 2009 (Cth), employees who are dismissed without a valid reason or due process may lodge a claim for unfair dismissal.
What makes a dismissal unfair? The law states that employers:
Should not dismiss an employee if it is harsh, unjust, or unreasonable.
Should not make an employee redundant if it is not a genuine redundancy.
Should follow the Small Business Fair Dismissal Code (if they are a small business).
A dismissal may be unfair if it is one, two, or all three of 'harsh,' 'unjust,' or 'unreasonable.' (Section 387 of the Fair Work Act).
Examples of ‘harsh’ dismissal:
The dismissal is an extreme response to the situation.
The dismissal has a disproportionate impact on the employee’s economic and personal situation.
Example of ‘unjust’ dismissal:
The employee is not guilty of the action or behaviour cited for dismissal.
Example of ‘unreasonable’ dismissal:
The evidence does not support the decision to dismiss the employee.
2.General Protections Laws: These laws protect employees from harmful (adverse) action, coercion, undue influence or pressure, and misrepresentation following the exercise of workplace rights.
What is adverse action? Adverse action can include:
Being dismissed
Being demoted
Being overlooked for promotion
What are prohibited reasons for adverse action? It is unlawful to take adverse action against an employee:
Because they exercised workplace rights (e.g., taking leave).
Because of their age, sex, disability, or another discriminatory reason.
Because they are away from work due to illness or injury.
Could This Incident Be Considered Adverse Action or Protected Expression?
This question delves into the complex intersection between free expression and workplace conduct. Political opinion is recognised as a protected attribute under General Protection law, safeguarding employees from adverse action based on their beliefs. However, this protection has limits. Employers can lawfully intervene if expressions of political opinion create a hostile work environment, violate company policies, or significantly damage the organisation's reputation.
In cases involving hate speech, such as the Bankstown Hospital incident, the line between political expression and discriminatory conduct becomes critical. Courts often evaluate intent, context, and impact when determining whether comments shift from a protected expression into seriousl conduct. Employers should ensure that their workplace policies explicitly address acceptable behaviour while upholding employees’ rights to personal beliefs.
Reputation Management for Employers Caught in Public Scandals
The Bankstown incident is a timely reminder that employers facing public scandals should act swiftly and transparently to manage reputational risk. Additional measures include providing crisis management training, engaging with public relations experts and lawyers to control narratives, and preparing statements for media inquiries.
At BlackBay Lawyers, we provide expert guidance to help employers manage reputational crises effectively, ensuring compliance with employment laws while protecting their public image.
Final Takeaways: The Impact of Viral Misconduct
The Bankstown Hospital incident underscores how digital actions can swiftly lead to professional consequences. Employers must carefully balance protecting their reputations with upholding employee rights, ensuring that responses are lawful, consistent, and fair. Employees must recognise that their conduct, particularly, in public digital spaces, can have lasting professional repercussions. Understanding these boundaries between personal and professional conduct is essential for fostering a respectful, compliant, and accountable workplace culture.
ABOUT THE AUTHOR
Isabella Orlic is a dynamic member of the team at the forefront of law in the digital age, focusing on defamation, media, commercial, regulatory, and employment law. Her practice is geared towards assisting clients in the social media, marketing, and creative sectors, adeptly navigating complex legal challenges unique to these industries.
Holding a Bachelor of Laws and a Bachelor of Arts (Media and Communications) from the University of Sydney, Isabella blends legal expertise with industry insight to deliver comprehensive, tailored solutions to her clients, empowering them to succeed while managing potential risks box.
