08 April 2019

High Court grappling with anonymous, out-of-hours online behaviour

The notion of anonymity on social media is one area High Court justices appeared to grapple with in recent hearings involving an employee who was dismissed for online misconduct, according to a lawyer closely following the case. 

Bartier Perry partner James Mattson says the Department of Immigration employee, who posted more than 9,000 tweets that were highly critical of her employer, argued that because her posts were "anonymous" she wasn't breaching the principles of the Australian Public Service code. 

The High Court justices didn't appear convinced, however, questioning where the line should be drawn – what happens if the employer discovers the employee's identity one minute after posting? 

"It may be that the [High Court's] reasoning reveals a thought that anonymous tweets aren't going to protect you, and that it's an uncomfortable dividing line." 

Mattson told HR Daily that the very fact an employee is sharing commentary anonymously might suggest they are aware their behaviour is wrong, and that their employer would not approve. 

A sensible approach would be for employees to operate on social media on the basis that their comments are not anonymous, and that their identity is "discoverable". 

In the case at hand, for example, the picture the employee used on her Twitter account was also her work computer's screensaver, so she was easily found out. "The whole team suspected it was her because of that link," Mattson says. 

Nonetheless, the High Court's judgment, to be handed down later in the year, will likely include some discussion of whether being anonymous "gets you out of trouble". 

Good faith and fidelity

Mattson says it would be "nice" if the High Court examines in detail whether online conduct such as that engaged in by the APS employee is compatible with the duty of good faith and fidelity, to provide more clarity for all employers. 

But he says it is more likely that, because the APS principles are quite clear, that won't be necessary. 

The decision will, however, have "implications for every employee and employer in Australia". 

"Certainly, there may be similarities in terms of the APS values and what a policy might say, [such as] 'at all times you must uphold corporate values'. The issue for the private sector will be an examination of whether or not the conduct is compatible with the duty of good faith and fidelity and whether or not the policy is reasonable." 

Too often, Mattson says, "there's a belief that the employment contract should bend to accommodate the personal interests of an employee". 

But, "the employment contract is a contractual bargain entity entered into between the employee and employer and there's important duties of good faith and fidelity that need to be upheld". 

"Moderate" comments a grey area

A decision in favour of the APS will send a message that employees need to be "mature, responsible and considerate on social media", says Mattson. 

He says this case will likely conclude that employees can comply with their contracts by making "moderate" comments, by not using insider information, and by engaging in open free debate, but not by being anonymous, dishonest and using insider information. 

This could create new issues for employers, he suggests, and it will also turn a spotlight on how implied freedom of speech in Australia is curtailed by employees' obligations. 

It might be difficult, for example, to take action against employees who put forward undesirable comments "in a non-inflammatory way; just simply expressing their views". 

"It would be hard for an employer to sanction an employee for holding those views, even if the majority of the workforce didn't like it. An employer might find it more difficult to sanction you if you weren't using intemperate language or personally attacking people."