08 August 2019

Banerji case sends ‘warning shot’ for employees’ use of social media

This article was originally published by Jerome Doraisamy for Lawyers Weekly on 8 August 2019.

The provisions of the Public Service Act do “not impose an unjustified burden” on the constitutionally implied freedom of political communication for those working in government roles, the High Court has ruled, in a decision that should be seen as a “cautionary message” for employees, argues one lawyer.

In a judgment handed down yesterday, a majority of the full bench – Chief Justice Susan Kiefel and Justices Virginia Bell, Patrick Keane and Geoffrey Nettle – ruled that the termination of former Australian Public Service employee Michaela Banerji’s employment was “not unlawful”.

The question before the High Court of Australia was whether certain “impugned” provisions of the Public Service Act imposed an unjustified burden on the implied freedom of political communication, with the result being that the termination of Ms Banerji’s employment for breaching the APS Code of Conduct was not reasonable administrative action taken in a reasonable manner with respect of exclusions provided for in the Safety, Rehabilitation and Compensation Act.

The “uncontroversial” facts of the case were that Ms Banerji, while employed within the Ombudsman and Human Rights and Equal Opportunity Commission section of what became the Department of Immigration and Citizenship, tweeted using the anonymous handle @LaLegale, with statements that included “many … which were variously critical of the department, other employees, departmental policies and administration, government and opposition immigration policies, and government and opposition members of parliament”.

Some of the tweets, according to the Administrative Appeals Tribunal, are “reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures”.

In mid-2012, following the receipt of complaints, the Department’s Workplace Relations and Conduct Section moved to terminate the employment of Ms Banerji on the grounds of breaching the APS Code of Conduct (which requires employees to behave honestly and with integrity in the course of employment, among other obligations).

In October of the following year, she lodged a claim for compensation under the aforementioned Compensation Act for an “injury” suffered as a result of the termination of her employment, however this was rejected by Comcare, on the basis that said termination was reasonable administrative action taken, and thus was not an injury within the meaning of the legislation.

The AAT, in determining the matter at an earlier juncture, considered whether the termination of Ms Banerji’s employment fell outside the provisions of the Compensation Act, having regard to the implied freedom of political communication.

“It is unfortunate that the issue was framed in those terms for it appears to have led the Tribunal to approach the matter, wrongly, as if the implied freedom of political communication were a personal right like the freedom of expression guaranteed by [Canadian legislation] or the freedom of speech guaranteed by the [United States Constitution], the four justices mused.

Ultimately, the Tribunal decided the matter “erroneously”, the majority held, on the basis "that the use of the Code as the basis for the termination of Ms Banerji's employment impermissibly trespassed upon her implied freedom of political communication".

“The implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the constitution,” the justices said.

“Accordingly, although the effect of a law on an individual’s or a group’s ability to participate in political communication is relevant to the assessment of the law’s effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law’s effect on political communication as a whole.

“More specifically, even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.”

As such, the AAT’s decision was “misconceived” and must be set aside, the justices determined.

The impugned provisions, the High Court majority continued, including their prescription of the range of penalties and the procedures for the assessment of breach and the imposition of penalty and review, “present as a plainly reasoned and focused response to the need to ensure that the requirement of upholding the APS values and the integrity and good reputation of the APS trespasses no further upon the implied freedom than is reasonably justified”.

In separate judgments, Justices Stephen Gageler, Michelle Gordon and James Edelman agreed with the orders of the majority.

The High Court decision sends a “warning shot” that personal or anonymous social media posts can see you sacked by your employer, argued Bartier Perry head of workplace law and culture James Mattson.

“[The] ruling sends a cautionary message to employees, particularly those in the public service, about ensuring their social media activity does not conflict with their employment duties” he mused.

A key element of the ruling, he noted, was that an employee could not hide behind a social media account that didn’t identify them.

“An anonymous posting may not always provide comfort for an employee from disciplinary action. As the High Court said, the risk of identification is obvious.”

He added, however, that the decision does not give employers free reign to fire employees for social media posts they didn’t like.

“Today’s ruling also does not provide a green light for employers to simply dismiss employees for social media misuse. The High Court discussed other remedies available to employee and the need for any reasonable exercise of discretion to consider different sanctions,” he said.

“This ruling also does not silence employees from having their own opinions. It instead recognises that while employees may have some freedoms and rights, they also have obligations. Employees must comply with their obligations to their employer.”

Marque Lawyers managing partner Michael Bradley also offered his thoughts, tweeting that "[The] High Court [is] not wrong about the law, but the law is terrible. We need a properly protected right to speak freely about government affairs".

The case citation is Comcare v Banerji [2019] HCA 23 and is available on AustLii.