Damage to an employer’s reputation can trump free speech and justify dismissal

In the wake of the closely watched proceedings recently commenced by Israel Folau regarding the termination of his employment for his comments on social media, the right of a public sector employee to share her personal views on Twitter on an anonymous basis after hours was recently examined in the High Court case, Comcare v Banerji [2019] HCA 23 (7 August 2019). 

It is now clear that public servants tweeting after hours is regulated by the Public Service Act 1999 (Cth) (Act) and the Australian Public Service (APS) Code of Conduct (Code). As George Orwell would say,  “Big Brother is Watching You.”

The Case - Comcare v Banerji [2019] HCA 23 (7 August 2019)

Ms Banerji, an APS employee, used the Twitter handle “@LaLegale” to broadcast about 9000 tweets which criticised her supervisor, the Department Of Immigration and Citizenship (in which she worked) and its policies and employees, as well as the Government and Opposition Members of Parliament.  The tweets were anonymous and all but one tweet were made outside work hours.

Section 13(11) of the Act sets out the Code, which requires (amongst other things) that APS employees “at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS”.  Section 10(1) sets out the APS Values and section 15(1) permits the imposition of sanctions on an APS employee found to have breached the Code, including termination of employment.

Complaints were made to the Director about her tweets. An investigation was conducted by the Assistant Director to determine whether Ms Banerji had breached the Code by failing to uphold APS values and by damaging the good reputation of the APS.  After providing Ms Banerji with the necessary opportunities to respond in accordance with the Act, it was finally determined by the Director that Ms Banerji’s “tweeting” had breached the Code and her employment was terminated on that basis.

The Court held that ss 10(1), 13(11) and 15(1) of the Public Service Act 1999 (Cth) did not impose an unjustified burden on the implied freedom of political communication, with the result that the Respondent’s employment was not unlawfully terminated.

According to the Court, the regulation of social media communications could impugn the implied freedom of political communication. However this was justifiable under these sections because the use of social media could damage the integrity and good reputation of APS.  

The proceedings by Israel Folau will deal with whether the right to regulate social media in the private sector is simply a question of contract or whether by doing so the contract unlawfully removes protections under the Fair Work Act 2009 (Cth) which prohibit unlawful termination on the grounds of religion.  In particular, is it lawful for Israel Folau to agree to forgo his alleged rights to freedom of religious expression as the price for accepting employment with Rugby Australia? 

Learnings

• Employers can regulate social media outside work hours if it may damage the employer’s reputation.
• Employers should consider if they want their employment contracts and policies to regulate an employee’s right to comment on their personal views which may damage the employer’s reputation.
• Training should be provided in acceptable social media use and social media policies should be applied consistently.  
• Prior to relying on such provisions in contracts or social media policies to take disciplinary action against an employee for breach, employers should seek advice about whether such action is lawful and could trigger any claim.