18 March 2019
Tweet, tweet: a High Court case on social media
On 20 March 2019 the High Court of Australia will hear an appeal about the dismissal of a government employee for tweeting highly critical comments of the government, her employer. The case will grapple with the obligation on an employee to discharge their contractual duty of loyalty and fidelity balanced against any so-called “freedom of speech”.
The employee will argue, amongst other things, that her tweets were anonymous and in her private time. Amongst other things, the High Court may consider:
whether a distinction between “open” and “anonymous” tweets is valid; and
whether an employer requirement to behave “at all times” is reasonably appropriate and legitimate.
Whatever the ultimate outcome, the facts of the case serve as a good warning to both employees and employers. There is no free-standing freedom of speech in Australia like other countries. While employees are entitled to their opinions, employees also have important contractual (and statutory) obligations to adhere to and fulfil. Employers, on the other hand, cannot overreach into an employee’s private life. Some matters are of no legitimate concern to an employer.
In this bulletin, we provide a background to the High Court case ahead of its anticipated ruling, perhaps later this year.
A tweeting time
Ms Banerji was employed in the Australian Public Service, by the then Department of Immigration and Border Protection.
Over many years, and under an alias Twitter handle of “LaLegale”, Ms Banerji posted over 9,000 tweets. The tweets were described as “highly critical” of the then Government, the then Minister, the Immigration portfolio and her superior in the Department. All her tweets, except one, were made during her own time (i.e. not at work) and using her own phone.
The Department investigated the tweets following complaints by employees. Ms Banerji initially denied it was her, but the Department found she was “LaLegale”. Eventually, after a fair process, the Department terminated Ms Banerji’s employment. Ms Banerji, on being informed of her termination, suffered post-traumatic stress disorder and claimed workers compensation.
An employee’s obligation
All employees owe their employer a duty of loyalty and fidelity.
Government employees have additional statutory duties. In the Australian Public Service, the Public Service Act 1999 (Cth) provides:
APS employees must “at all times” behave in a way that upholds the APS Values and the integrity and good reputation of the Australian Public Service (section 13(11)); and
An APS Value that the Australian Public Service is apolitical, performing its functions in an impartial and professional manner (section 10(1)(a)).
The Australian Public Service had also issued guidelines about social media and the making of public comments, cautioning employees to take care and “reflect” to ensure they do not behave “in a way that suggests they cannot act apolitically or impartially in their work”.
The legal issue
An employee is entitled to workers compensation for an injury caused by employment. However, a psychological claim can be denied if, in this case, the dismissal was “reasonable administrative action” or also called, “reasonable management action”.
It was agreed by the parties that the only issue in the proceedings was whether the decision to dismiss breached the implied freedom of political communication. If it did breach that freedom, then the dismissal could not have been reasonable administrative action.
In Australia, there is a limited freedom of speech, known as the implied freedom of political communication. Accordingly, the legal issue is whether the requirement to behave “at all times” in a way that upholds the APS Values, and the decision to dismiss:
effectively burdened the freedom of communication about government or political matters; and
if it did, whether the burden was reasonably appropriate and adapted to serve a legitimate end, compatible with the maintenance of a system of representative and responsible government.
Central to the case is the fundamental principle that public servants serve the Government of Australia, and not a political party. Public servants need to be apolitical in the discharge of their duties.
The original Tribunal ruling
The Administrative Appeals Tribunal of Australia in Banerji v Comcare (Compensation)  AATA 892, held that the decision to dismiss Ms Banerji was an “unacceptable trespass” on the implied freedom of political communication and “ipso facto cannot be reasonable administrative action”.
Interestingly, if the tweets were open comment, the Tribunal said at :
On balance, we consider that Ms Banerji would have breached her duty of loyalty and fidelity owed to the Department had her tweets been open comment. In that circumstance, the application of sanctions against her … would have constituted a proportionate and appropriate application of a law competently designed to preserve the apolitical and impartial status of the APS. In that context, the importance of the law’s purpose and the benefit sought to be achieved would have warranted some impingement on Ms Banerji’s constitutional freedom to express her political views.
But the anonymous tweets “have an entirely different complexion”, the Tribunal said. “This is because the explicit objectives of a law designed to protect the impartial status of the APS fall away in the context of comments not ostensibly made by a public servant”.
Though, the Tribunal did caution at :
We do not consider that the burden of the duty of fidelity and loyalty disappears entirely in the circumstances of anonymous comment. One might expect that an employee, even in private, should exercise a measure of restraint in badmouthing their employer, consistently with their duty. However, the burden of the duty is slight in comparison with the burden on the implied freedom of an employee to express political opinions where to do so occasions minimal damage to the employer by virtue of the opinions being expressed anonymously.
Ms Banerji was entitled to receive workers compensation.
As the divide between work time and private time is easily blurred, we will see more challenging circumstances. “The conduct of employees outside of work hours has increasingly become the subject of potential scrutiny by employers”, the Fair Work Commission recently observed: Puszka v Ryan Wilks Pty Ltd  FWC 1132. Perhaps, legitimately so.
In our view, the decision of the Tribunal to draw a distinction between “open” and “anonymous” tweets is an artificial and uncomfortable distinction. It could be argued that an “anonymous” tweet from a person in a position of trust is perhaps dishonest.
The Tribunal’s decision also pays no regard to the astute comments of the Federal Circuit Court of Australia that the implied freedom did not give Ms Banerji an “unfettered right” to not discharge her employment contract. Employees, by accepting employment, have made a solemn commitment to serve their employer with loyalty and fidelity.
Workplace culture and safety has significance in this modern age. Employees need to understand that critical and personal comments, which in the case of Ms Banerji were described as “intemperate, even vituperative, … personal attacks”, can have wider implications for the workplace and reputations.
The implied freedom of political communication only operates in a limited way. As is apparent from its title, it only applies to a particular type of communication – and not all communications. As such, employees have limited protection from disrespectful and nasty comments on social media.
Employees need to carefully think before they post and tweet!
Author: James Mattson