He said the flag made him look like he belonged to "that group"
A contractor who repeatedly complained about a pride flag at his NSW government workplace has had his victimisation claim dismissed - after telling the Commission his real concern was that people might think he was gay.
The worker had been providing contract consulting services to the NSW Department of Planning, Housing and Infrastructure as a construction project manager in its Heritage Stoneworks division since about October 2023. In April 2024, he applied for a full-time delivery manager role with the department and was told he had not been successful.
His director offered two alternatives. The first was a temporary ongoing contract at Grade 10, paying $133,183 plus 11% superannuation, with access to leave entitlements. The second was a bump in his contractor day rate to between $650 and $670. The worker chose the first option - the path to a government contract.
By July 2024, things were moving. The department emailed to say it was "progressing with HR to implement you into this role" and confirmed a suitability assessment would replace the usual competitive hiring process. A formal letter of offer was on its way.
Then came the pride flag.
In early June 2024, the worker had raised an objection with his supervisor about the pride flag being displayed in the building's front foyer alongside the national, state and First Nations flags. He raised it again - with both his supervisor and his director - multiple times through July and August 2024.
On August 16, 2024, the department informed him the contract role was withdrawn.
The worker filed a victimisation application with the Industrial Relations Commission of New South Wales on September 6, 2024, arguing the withdrawal amounted to payback for raising concerns about the flag. His case rested on s 210(1)(h) of the Industrial Relations Act 1996 (NSW), which protects NSW public sector employees and prospective employees from being punished for engaging in public or political activity that does not interfere with their duties.
The department had already tried to have the claim thrown out on jurisdictional grounds, arguing the Commission had no power to hear hiring disputes for non-executive public service roles. That bid failed in an earlier ruling.
So the matter went to a full hearing.
The first question was whether the worker even counted as a "prospective employee" - he was still a contractor, with no signed offer letter and no identified vacancy. The Commission found he did. The July 2024 email confirming the department was actively moving to place him in the role took him "beyond a mere candidate." Even though no specific vacant position had been pinpointed, there was a realistic prospect of future employment.
That finding carries real weight. It means victimisation protections under the IR Act can kick in before a contract is signed, before an offer letter is issued, and even before a vacancy is formally created - so long as the recruitment process has advanced far enough.
The second question was whether the flag complaints qualified as protected public or political activity.
That is where the claim fell apart.
To be protected, the activity needs to go beyond someone's private interests - it has to be directed at a broader public cause, or aimed at influencing government policy. The Commission looked at the worker's own evidence about why he objected.
His answers were direct. He regarded the pride flag as a "club flag" representing a group he did not belong to. He considered himself "a part of the other flags that are on display" but not the pride flag. When asked what concerned him, he said the display signified to him that he belonged to that group. Asked whether he was concerned people would think he was gay, he answered, "Yes."
That admission was decisive.
The Commission found the worker's evidence "does not express any issue beyond the Applicant's concern regarding his own self-interest." His reasons for objecting contained no reference to government policy, political beliefs or any broader political objective. His concern was personal - how the flag reflected on him and how others might perceive him.
The application was dismissed.
For HR teams in the NSW public sector, the case draws a sharp practical line. Objections to workplace displays are not automatically protected conduct, even under broad anti-victimisation provisions. The protection turns on the motivation behind the complaint - not its subject matter. A personal objection dressed in political language will be tested on the evidence, and what a worker says about why they actually raised it can decide the outcome.
The decision was handed down by the Industrial Relations Commission of New South Wales. No appeal has been noted.
