09 April 2019
The High Court is currently hearing Comcare’s appeal of an Administrative Appeals Tribunal (AAT) decision which turns on the question of whether an employee’s anonymous tweets criticising her employer were a lawful reason for dismissal.
Ms Banerji was employed by the Australian Public Services (APS) in the (then called) Department of Immigration and Citizenship (Department). Between 2006 and 2012, she posted over 9000 tweets anonymously on Twitter that were highly critical of the Government and its immigration policies. The Department investigated the account and terminated Ms Banerji’s employment for breaching the APS Code of Conduct (Code), in particular, by failing to uphold APS values, specifically that of being ‘apolitical’, and employment principles.
As a consequence of the termination, Ms Banerji suffered post-traumatic stress disorder, which rendered Comcare liable to pay compensation unless the injury suffered was a ‘result of reasonable administrative action taken in a reasonable manner’ (being an express statutory exclusion). The decision turned on whether the termination met the threshold for the statutory exclusion in light of the overarching constitutionally implied freedom of communication
Both parties, before the AAT, contended that the Code does in fact burden the freedom of political communication in order to maintain an apolitical public service and public confidence in that service. However, in assessing whether the Code was reasonably appropriate and adapted to serve this purpose, the Deputy President’s decision rested on the anonymity of Ms Banerji’s comments.
The AAT found that had Ms Banerji’s tweets been ‘open comment’, they would have breached her duty of loyalty and fidelity to her employer. Although the anonymity does not entirely discharge this duty, the AAT ruled that a law purporting to prevent anonymous expressions of opinion was a serious impingement on constitutional freedoms and resembled George Orwell’s ‘thoughtcrime’. Thus, the termination was found to have ‘unacceptably trespassed on the implied freedom of political communication’ and was, for the purposes of the Comcare scheme ‘unlawful’ and consequently, not a ‘reasonable administrative action’.
Current appeal to the High Court
On appeal to the High Court, Comcare and the Attorney General have submitted that the ‘bright line’ drawn by the AAT between open and anonymous comment was erroneous. Anonymous comments still have the potential to affect the good reputation and apolitical character of the APS, for example, on their submission, if the speaker is subsequently revealed. However, Ms Banerji has argued that such anonymous communication is no more capable of failing to uphold the APS standards as is a private citizen’s expressions of political views. She has submitted that although the APS is apolitical, employees cannot be expected to manifest personal qualities of political neutrality in their daily existence.
To Tweet or Not to Tweet?
The High Court continues to hear the matter, with interventions in favour of Comcare by the Attorney-Generals of NSW, SA and WA. The imminent decision will be a landmark case on employee obligations and how far outside the workplace they extend before potentially breaching constitutionally implied freedoms. Until then, employees should think twice before posting a risky tweet about their employer, including under an alias, and employers should take care in ensuring their codes of practice don’t resemble Orwellian concepts.
Authors: Louise Rumble & Ushna Bashir
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
Michael Selinger, Partner
T: +61 2 8083 0430
Charles Power, Partner
T: +61 3 9321 9942
Benjamin Marshall, Partner
T: +61 3 9321 9864
Rachel Drew, Partner
T: +61 7 3135 0617
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