28 March 2019

Press Release: Cop it tweet – High Court to weigh-up ‘free speech’ and the workplace

An article resulting from this press release was published by ABC News on 20 March 2019 by Elizabeth Byrne - High Court to determine whether your employer can dictate what you can say. James Mattson's comments on this topic have also been sought for in - ABC radio, Sky news (TV) and Lawyers Weekly

The High Court of Australia will tomorrow begin hearing an appeal which could influence how far employers can go when firing employees for comments they make on social media in their own time.

“The appeal being taken by former Canberra public servant, Michaela Banerji, is set to have implications for every employee and employer in Australia,” said James Mattson, Practice Head of Workplace Law & Culture team at Bartier Perry.

“At the heart of this appeal could be two crucial questions. If an employee posts anonymous comments on social media, can an employer who later finds out the identity of the employee, use these posts as grounds for dismissal? Secondly, is an employment contract or policy that requires a worker to behave ‘at all times’, in regard to their employer’s interests, appropriate and legitimate?”

Ms Banerji was fired by the then Department of Immigration and Border Protection after they uncovered she was behind an anonymous twitter account that was frequently highly critical of her employer.

All but one of the 9,000 plus anonymous tweets she sent out were made outside of the office and on her own phone. The Department said employees had complained about the tweets.

“What previous hearings on this topic have grappled with is the increasingly blurred boundaries between your work and personal time,” said Mr Mattson. “So, to what extent does an employer have a right to police your thoughts and opinions outside of the office? Is there any distinction between an anonymous comment an employee posts online as opposed to putting their name to it?”

Mr Mattson said that under the law employees and employers have important obligations to ensure a safe workplace

“But does that then entitle an employer to question an employee’s private activities when it affects reputation and the wellbeing of others?”

Mr Mattson said while the appeal outcome would have a direct bearing on the public service, given the often politicised nature of Ms Banerji tweets, its implications could ripple out into all workplaces across Australia.

“The High Court will be asked to weigh-up the obligation on an employee to discharge their contractual duty of loyalty and fidelity and their statutory obligations, balanced against any so-called “freedom of speech”. Where will that balance be found?”.

The High Court will begin hearing the Appeal in Canberra tomorrow with judgement expected later this year.