High Court’s Banerji decision a free speech lesson

The much mentioned Comcare v Banerji decision in the High Court of Australia has created a stir about the possibility of constrained expression of political views by employees or employees being dismissed for their social media posts. Despite the “hype” it seems clear that the decision does not give employers (generally) free reign to sack employees who express their political or social views online.

The decision was certainly interesting to political observers and lawyers, but in the end, it has little relevance for those working outside the public sector. The importance of a social media policy within workplaces however, is in the spotlight as a result of the recent media coverage.

What was the case about? 

The Department of Immigration and Citizenship sacked a worker for breaching the APS Code of Conduct.  The breach was that she posted more than 9000 anonymous tweets that were critical of government, of opposition immigration policies, critical of parliamentarians and critical of the worker’s direct supervisor.

The worker said being dismissed aggravated a psychological condition and she applied for worker’s compensation through the Commonwealth’s Comcare scheme. Comcare denied her claim for compensation because it held that the dismissal was “reasonable administrative action taken in a reasonable manner”.

The worker appealed to the Administrative Appeals Tribunal. The AAT agreed with the worker that the dismissal decision cannot have been “reasonable administrative action” because it breached the worker’s implied constitutional rights.  The AAT held that provisions in the Public Service Act and APS Code of Conduct imposed an unjustified burden on the implied freedom of political communication. This breached the worker’s implied constitutional rights and therefore, being dismissed for breaching the APS Code of Conduct was not reasonable administrative action taken in a reasonable manner.

The High Court’s decision overturned the AAT.  The High Court decided that the Public Service Act and the APS Code of Conduct did not impose an unjustified burden on the implied freedom of “political communication”. Therefore, the worker’s dismissal was lawful as there was reasonable administrative action taken in a reasonable manner.  The worker’s claim for worker’s compensation for her psychological injury due to her dismissal was correctly denied.

Does this case have widespread repercussions for freedom of speech for all employees? 

The short answer is no. This decision is not give a ‘green light’ to non-public service employers (private sector employers) to terminate employees who express political or other views on social media.

The case however raises questions surrounding the nature of appropriate social media commentary, or defamation when it comes to public forums. There remains a number of risks for employers who purport to regulate out of hours (or ‘private’) employee conduct (including social media) if that conduct does not have a nexus (or has minimal nexus) with an employer’s legitimate interests. A private sector employer who wants to terminate the employment of a staff member for posting political views on social media with which the employer happens to disagree does not get support for this action from the Banerji decision.

The judgment focused on the fact that it is “highly desirable if not essential to the proper functioning of representative and responsible government” that governments of all complexions “have confidence in the ability of the APS to provide high quality, impartial, professional advice”. Governments need confidence “that the APS will faithfully and professionally implement accepted government policy, irrespective of APS employees’ individual personal political beliefs and predilections”.

This implied freedom of political communication was “not a personal right of free speech”. It in fact comes from the opposite direction and is a restriction on government power.  Government power must extend “only so far as is necessary to preserve and protect the system of representative and responsible government”.

Preserving and protecting the system of representative and responsible government is not generally a direct legitimate private sector employer necessity.

The better guide for private sector employees

The Fair Work Commission cases dealing with social media use by employees remain a more useful guide. The Fair Work Commission cases are to the effect that

  • An employee’s behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment or is contrary to the employer’s legitimate business interest”.
  • “The conduct or misconduct must have a relevant connection to the employment.”

The cautionary message to employees is to ensure their social media activity does not conflict with their employment duties or jeopardise a legitimate employer business interest. The message to employers is that they do not have free reign to fire employees for social media posts they didn’t like or general social media misuse.

What employers must do

  1. Be clear in workplace codes of conduct or social media policies about what is expected of employees and in particular, any legitimate business interest should not be the subject of any social media posts (or which will be in conflict with the employee’s employment obligations).
  2. Inform employees about the codes of conduct and social media policies and be clear about the steps that might be taken in the event that an employee makes a political and/or social media comment or post that may conflict with their employment obligations or which may bring the employer’s business into disrepute.
  3. Don’t jump to quick conclusions about a social media post just because it seems controversial or is contrary to the employer’s view. Undertake a reasonable and measured process to determining whether, in fact, any social media and/or other political/social step has in fact jeopardised an employer’s legitimate business interests and or compromised the employee’s employment obligations.
  4. Identify the scope, situations or places of when and how the employee will be the face of, or a representative of, the employer’s business and provide clear expectations of how the employer expects employees to manage and/or conduct themselves in relation to those political or social situations.

Disclaimer

This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

Queries

For further information please contact the author Robert King, Partner – Employment, Workplace Relations & Safety (Brisbane and Sydney), or Martin Alden, Partner – Employment, Workplace Relations & Safety (Melbourne).

The Author

Robert King

PARTNER, BRISBANE