Today, the High Court of Australia handed down a highly anticipated judgment that deals with the implied freedom of political communication and an employee’s online communications outside of normal work hours. In this article Emily Shoemark and Gemma Butler discuss the case and why it is important.
With technology and social media playing an ever-increasing role in our society, this case highlights how important it is for:
- employers to have a sound workplace-policy tailored to that specific workplace
- employees to understand the policies governing their employment and the consequences of breach.
In 2013, Ms Michale Banerji, a former public affairs officer of the Department of Immigration and Citizenship, was dismissed for using social media as an avenue to communicate critical comments regarding the then-Labor government’s policy.
Ms Banerji used the Twitter handle ‘@LaLegal’ to post more than 9,000 tweets, many of which were overly critical of the Department, other employees, policies of the Government, the Opposition, and members of parliament.
Following an investigation, the Department found that Ms Banerji had breached the Code of Conduct and proposed the sanction of termination of employment under the Public Service Act 1999 (Cth) (the Act). After providing Ms Banerji with opportunity to respond, it was decided that the sanction would be implemented, and Ms Banerji was provided with a notice of termination.
As a result of her termination, Ms Banerji claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for injury resulting from the termination of her employment.
After an internal review rejected Ms Banerji’s claim for compensation, the decision was successfully appealed. The Administrative Appeals Tribunal (AAT) found that the Department’s use of the Code of Conduct impermissibly trespassed on Ms Banerji’s implied freedom of political communication.
The Commonwealth appealed the AAT’s decision, which was heard in the High Court in March 2019.
In coming to their decision, the question for the High Court was whether the Act imposed an unjustified burden on political communication as a whole.
The Court unanimously held that the Act had a purpose consistent with the constitutionally prescribed system of representative and responsible government. In the context of this case, it means that the aim of the Act is to ensure that public servants are to remain apolitical and this is in line with purpose of Australia’s Constitution.
The Court held that the provisions of the Act were reasonably appropriate and adapted or proportionate to their purpose and as such did not impose an unjustified burden on the implied freedom.
In respect to whether anonymity played a role in protecting Ms Banerji from breaching the Act, the majority established a rule of thumb that if a person posts material online, particularly on social media, you should assume that at some point your identity and the nature of your employment will be revealed.
As a consequence of the decision, the termination of Ms Banerji’s employment with the Commonwealth was not unlawful and the provisions of the Act are valid.
What does this mean for you?
This decision highlights the importance for employers to have sound workplace policies in place. This allows you to have an instrument to turn to when an employee acts outside your expectations and, when appropriate, allows you to have some control of the communications of your employees on social media and to prevent damage to the reputation of your business.
For employees, however, it is crucial that you understand the workplace policies in place to ensure you do not jeopardise your employment.
How can we help?
If you think this decision may impact you and you would like to obtain legal advice, please contact our Employment Law team by email or on 02 6285 8000.