20 March 2019

Law firms among those to feel implications of High Court appeal

This article was originally published by Emma Ryan for Lawyers Weekly on 20 March 2019. James Mattson's comments on this topic have also been sought for in - ABC newsABC radio and Sky news (TV).

An appeal being heard in the High Court of Australia today is set to have major implications for every employee and employer in Australia, including law firms, according to the practice head of workplace law and culture at Bartier Perry.

James Mattson, practice head of the workplace law and culture team at Bartier Perry, has flagged that this morning will see the commencement of 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 is being taken by former Canberra public servant Michaela Banerji and is one set to have implications for every employee and employer in Australia, Mr Mattson said.

It stems following Ms Banerji’s dismissal 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,” Mr Mattson explained.

“... 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?” he questioned.

“What previous hearings on this topic have grappled with is the increasingly blurred boundaries between your work and personal time.

“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 acknowledged that while under the law employees and employers have important obligations to ensure a safe workplace, he questioned on whether that then entitled an employer to question an employee’s 

private activities when it affects reputation and the wellbeing of others.

He noted that while the appeal outcome would have a direct bearing on the public service, “given the often politicised nature of Ms Banerji’s 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?”