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Implied Freedom of Expression in Australia and Public Sector Employees

Australia Update.

Public sector jobs are known to have many benefits and advantages such as good pay and leave, but do they allow adequate freedom of expression?

In the recent High Court decision of Comcare v Banerji, public servant Michaela Banerji was found to have breached her employment agreement and rightfully dismissed after she was discovered to have posted over 9,000 tweets on the anonymous Twitter account “@LaLegal”. Michaela Banerji had been critical of the Department of Immigration (where she worked) and sought compensation for the psychological injury she experienced following her dismissal.

Banerji’s appeal to the High Court raised concerns for the implied freedom of political communication in Australia, and how it may be restricted when it comes to the workplace and an individual's use of social media.

When Banerji made the posts on Twitter in 2009, the law was clear about what a public sector employee could and could not say, but it was severely underdeveloped in conveying the limitations when it came to individual social media use. The Banerji High Court decision sets out the boundaries for public sector employees making it clear that there is no such implied freedom of expression when it comes to making political statements. The High Court confirmed that statements made on social media by public sector employees, even if done anonymously, is contrary to the APS Code of Conduct in the Public Service Act 1999.

There has been much discussion in the legal profession that the Banerji decision has little impact outside of the realm of public service. However, many cases brought before the Fair Work Commission, such as Murkitt v Staysafe Security T/A Alarmnet Monitoring, show that companies are seeking to apply Banerji-style limits to the implied freedom of expression across all workplaces.

Anyone who has signed an employment contract is also likely to have agreed to statements such as:

  • "not intentionally do anything that is or may be harmful to the Company"; or

  • refrain from posting inappropriate material which includes material intended (or could possibly) cause insult, offence, intimidation or humiliation to the Company… or is defamatory and could adversely affect the image, reputation, viability or profitability of the Company."

In December 2018, Ms Murkitt was on Workers' Compensation leave when she posted on her Facebook page:

"I use to love my job at Alarmnet Monitoring. I use to love that we were owned by a family... Then along came 3 Victorians who bought the company from the family… These 3 Victorians came over and changed everything. They have more money and think they have more power coz they are from Melbourne. Shame on you. We use to be so proud of the service we gave our customers… they don't care for clients, they don't care for their staff…. really really sad…"

Murkitt was subsequently terminated for her post. Whilst the Fair Work Commission found Alarmnet had met the standards required for 'valid reasons' and procedural fairness, Murkitt's termination was ultimately deemed unfair and harsh given:

  • her 15 years' of service

  • there was no formal disciplinary action before her Facebook post

  • her medical condition as one of the contributing factors for making the post

The dismissal of employees by private companies for similar reasons as to those in Banerji Case gives rise to the question: when is the line clearly drawn between a violation of a workplace code of conduct and the inability of a corporation to receive criticism?

In summary, the Banerji High Court decision confirms that employers have the right to regulate all social media posts made by employees out-of-hours where it is damaging to the employer, even if they are made on the basis of implied freedom of speech. However, employers must document the "valid reasons" and implement all steps to ensure procedural fairness before dismissing employees on account of personal social media posts. This includes properly investigating the offending posts, raising formal disciplinary actions in respect of the posts, and giving employees the right of a response and apology or other corrective measure.

By Emilija Batar

© ISMA - 2020

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