Great expectations

Commentary has been rife following Israel Folau’s termination and the dismissal of a federal public servant for making anonymous tweets critical of government and opposition policies and parliamentarians. Media headlines have sensationalised the loss of free speech and labelled the decisions draconian and Orwellian and heralded warnings for employees’ use of social media.

Controversy aside, the cornerstone of the Comcare v Banerji* High Court ruling was a reasonable and clear code of conduct which set out expectations around employee conduct. In the age of prolific social media platforms, which provide anonymous individuals and sports stars with national exposure, organisations have never been more cautious about the “brand” their employees present online.

In the case of Banjeri, a public affairs officer, “she began broadcasting tweets on matters relevant to the Department, using the Twitter handle “@LaLegale”4.There were more than 9,000 such tweets, at least one of which was broadcast during the respondent’s working hours, and many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament.

Banjeri originally lodged an unfair dismissal claim in 2013, arguing she was unlawfully fired from the Department of Immigration and Border Protection. While this claim was dismissed she was later successful in a workers’ compensation case claiming compensation for a psychological injury as a result of the termination of her employment. In these proceedings, the Administrative Appeals Tribunal found her dismissal was unreasonable in part because it had impeded her implied right to freedom of political communication.

Comcare appealed the Administrative Appeals Tribunal’s decision to the Federal Court, however the Commonwealth Attorney-General removed the appeal to the High Court.

On 7 August 2019, the High Court unanimously allowed the appeal. The High Court specifically noted that employees were not protected by anonymity.

there is no reason to suppose that “anonymous” communications cannot fail to uphold the integrity and good reputation of the APS… as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.

Additionally, the Court determined that the requirements of the Public Service Act 1999 (Cth) and the Australian Public Service Code of Conduct and guidance documents did not infringe on implied freedom of political communication as their intent was to achieve an apolitical public service.

The Australian Government Solicitor’s office has published a commentary of this particular case**, highlighting implications for decision makers. This landmark ruling does not provide precedent for employers to dismiss workers for comments on social media which they simply don’t like.

The Court referred with approval to the content of various guidance documents issued by the APSC and other agencies about the proper conduct of APS employees, including guidance about the need to act consistently with the APS Values concerning an impartial and apolitical public service in the use of social media.

Instead, this recent ruling highlights key considerations for Australian businesses when developing, implementing and enforcing codes of conduct, associated policies and guidance documents. It is not enough to make a statement around the expectations of employee behaviour in a code of conduct, without careful consideration within the legislative framework and whether such expectations are reasonable. An effective code of conduct will articulate employees’ rights and obligations within the context of their employment and specify if this extends to things such as public commentary and social media use.

Further, decision-makers who are responsible for determining whether employee behaviour breach codes need to carefully consider all of the circumstances before determining if an employee’s conduct is inconsistent with the documented expectations of the organisation.

The decision also serves a reminder that any disciplinary action must be proportionate to the nature and gravity of the misconduct and the personal circumstances of the employee in question.

Workdynamic has extensive experience in developing and reviewing codes of conduct and a keen understanding of the enforcement of these types of policies. Our application of such policies in workplace investigations affords us particular insight into how best to develop, document and deliver the expectations an organisation has of its employees.

* Comcare v Banerji[2019] HCA 237 August 2019 C12/2018


The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.