The campaign for voting No in the marriage equality postal survey has another martyr, this one having the decided advantage of being local. A Christian teen has made it to The Australian‘s front page after she was “fired” for applying an “It’s OK to vote No” filter to her profile picture. Surely no employee should face that kind of discrimination for their political or religious beliefs. Unless, obviously, they work for a Church.

What legal options does she have?

The inverted commas around “fired” are not our choice, but those of the Oz. The reason is that Madeline, who doesn’t want her surname published, was engaged as a contractor, which muddies the water. An employee who has been sacked has two options — first, they can apply for unfair dismissal, which argues that a dismissal is harsh, unreasonable or unjust. Second, they can apply adverse action — that is a claim that an employee’s general rights at work (including the right not to be discriminated against due to religious beliefs) have been breached. 

How are contractors different?

A contractor is not an employee, so they cannot be fired. Contractors are their own businesses, according to the law, which means none of the protections covering employees under the Fair Work Act — minimum rates of pay, paid leave and protection from unfair dismissal or adverse action.

Given that she only did two shifts at the business, she wouldn’t have been eligible for unfair dismissal anyway — you have to have worked for at least six months for an employer before you can reply, 12 months if it’s a small business (less than 15 employees), which Capital Kids Parties might well be. Adverse action would have been available to Madeline, as there is no time limit that prevents at claim.

Was she in a sham contract and how does that matter?

The other issue at play is whether was Madeline a legitimate contractor. As a contractor is supposedly their own business, legally they ought to have a great deal of freedom about how and when they do their work. A simplified example Crikey has offered before: a business hires a contractor to paint its premises. That contractor provides all her own material and equipment, has total control over how she gets it done, and can paint as many other businesses as she likes. Once the job is done, the contract is over. 

Madeline could argue, as an ongoing worker, who could be directed to work at certain places at certain times that was actually legally an employee and that her engagement was a sham contracting arrangement — which could lead to a headache for Capital Kids Parties, given her owner has made it publicly explicit that Madeline’s stance on marriage quality that lead to her being “let go”. And apparently, Fair Work is already interested in just that possibility.

If she had been an ongoing employee, would she have a claim?

Absolutely, but only for adverse action, not unfair dismissal, because of the time frames involved. And that could be very worrying for Capital, because unlike unfair dismissal (where the maximum payout available to a successful applicant is 26 weeks pay), the compensation that can be awarded is uncapped for adverse action — at the highest end, employees have been awarded over a million dollars.