It is not controversial that employers can lawfully sack employees who breach workplace policies – including policies on social media use and expression of public views outside of work. However, the limitations of employer power in this context have been the subject of much public debate recently.
In this context, on 7 August 2019, the High Court handed down a much awaited decision which gives further food for thought about employer prerogative in managing employee behaviour.
In Comcare v Banerji, a public servant was sacked for breaching the Australian Public Service (APS) Values and Code of Conduct, which relevantly state that ‘the APS is apolitical’ and that ‘an APS employee must behave in a way that upholds the APS Values and the integrity and good reputation of the APS’. Ms Banerji was sacked for posting more than 9,000 ‘anonymous’ tweets – many of which were critical of her employer, other staff, her employer’s policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament.
Ms Banerji challenged the decision to dismiss her, and also claimed compensation for an adjustment disorder arising from the dismissal.
Comcare rejected her claim on the basis that the termination was ‘reasonable administrative action taken in a reasonable manner in respect of the respondent’s employment, within the meaning of s 5A(1) of the Compensation Act’. The case came to the Administrative Appeals Tribunal, which found against Comcare – agreeing with Ms Banerji that the dismissal was not reasonable action because it breached her implied freedom of political communication. However, the High Court overturned the Tribunal’s decision. It found the law, including the APS Values, to be reasonably necessary, legitimate for the purposes of responsible government, and not an infringement of the implied freedom of political communication. Accordingly, the dismissal was lawful.
The High Court commented approvingly on a comment made in the APS guidelines that an ‘anonymous’ user of social media ‘should assume that, at some point, his or her identity and the nature of his or her employment will be revealed’. Perhaps ironically, this risk of identification is evident from the facts of this case itself: because, of course, Ms Banerji was eventually identified to be the one posting the ‘anonymous’ tweets.
Further, posting critical and harsh tweets was bound to raise questions about the employee’s capacity to work professionally, efficiently and impartially; likely seriously to disrupt the workplace; and, for those reasons, calculated to damage the integrity and good reputation of the employer – even if they were made anonymously.
One case bound to draw comparisons with Ms Banerji’s is the current dispute between Israel Folau and Rugby Australia. While there are material differences between the two, the essence is the same: both cases are about employees whose employers say that they sacked them for making public comments outside of work. Of course, it remains to be seen:
- whether the termination of Mr Folau’s employment is found to have been terminated lawfully, for breaching Rugby Australia’s code of conduct, or unlawfully on the basis of his religion; and
- the extent to which the decision in Ms Banerji’s case might affect Mr Folau’s case.
If you would like to discuss any aspect of this article and/or would like us to review your policies so that they accurately reflect the needs of your organisation, please contact a member of our Employment and Safety team.