An employer who terminated a children's party entertainer after learning she opposed same-sex marriage and published her views on social media has been cleared by Fair Work.
The owner of Capital Kids Parties, Madlin Sims, justified her decision in a private Facebook post last year. She said that "homophobic views being made public are detrimental to the business and don't align with my personal values or morals as the owner of the business".
She also argued that “advertising your desire to vote no for same-sex marriage” is, in her eyes, “hate speech”.
"Voting no is homophobic. Advertising your homophobia is hate speech," Sims wrote on Facebook.
"As a business owner I can't have somebody who publicly represents my business posting hate speech online.
“It’s bad for business... I don't like s*** morals... I don't want homophobes working for me, especially in an environment with children.”
Under the Fair Work Act, unlawful workplace discrimination occurs when an employer takes adverse action against an employee or prospective employee due to their political opinion.
However, a fair work inspector has said in a letter that due to insufficient evidence to determine whether the worker met the definition of employee, the Fair Work Ombudsman (FWO) would pursue no further action.
"The investigation … has not identified any contravention of the Commonwealth workplace laws or the relevant industrial instrument," the letter said.
"Discrimination occurs in the workplace when an employer takes adverse action against an employee because of a protected attribute.
"As the FWO has been unable to determine the nature of the engagement based on the evidence available, we will be taking no further action in relation to this matter at this time."
The inspector added that there was some evidence that the relationship did indicate employment, while other evidence indicated a contracting situation.
Last year, the terminated worker (known only as Madeline) said she wasn’t homophobic and she has a history of working positively with children.
"I am the oldest of eight kids, I have helped in Sunday schools and church camps and kids camps," she said.
“This is a democracy and we were given the options and asked, as Australians, to vote yes or no and it is my opinion to vote no.”