You won’t be surprised to know that the word “poly” comes from the Greek word “polýs” which means ‘many’. But did you know that, earlier this year, the Federal Circuit Court of Australia in Bunning v Centacare [2015] FCCA 280 was faced with the question of whether an employee of a religious organisation could be dismissed for being “polyamorous”? (Defined by the Oxford Dictionary to be “the practice of engaging in multiple sexual relationships with the consent of all involved.”)
Susan Bunning was employed by Centacare (a Catholic counselling organization) in the position of Clinical Practice Co-ordinator. In 2011 or 2012 Ms Bunning became associated with the Brisbane Poly Group (a social group for those interested in open relationships and polyamory) and provided the organisation with her work contact details which were later published on their website.
About a year later Centacare dismissed Ms Bunning for serious misconduct when it became aware of her involvement with the Brisbane Poly Group. It argued that her involvement was against the moral teachings of the Catholic Church and brought Centacare into disrepute. Ms Bunning lodged a claim with the Federal Circuit Court alleging unlawful discrimination under the Sex Discrimination Act 1984 (SDA). While the SDA makes it unlawful to discriminate against an individual because of their sexual orientation, the key question for the court was whether being polyamorous was a relevant sexual orientation.
To Ms Bunning’s disappointment, the court held that it had no jurisdiction to hear her claim because, for the purposes of the SDA, the phrase “sexual orientation” was intended to mean “how one is” rather than a person’s sexual behavior or lifestyle. The court said that, if polyamory could be considered a person’s sexual orientation, this would potentially lead to the absurd result where sexual behaviors such as pedophilia and necrophilia would be legally protected grounds.
In light of this decision, it seems that although a person’s sexual behavior would not be protected by anti-discrimination laws in Australia, sacking an employee for having friends with benefits could still get employers in hot water under other legal routes such as a claim for unfair dismissal or adverse action.