Social Media: An Employee’s Freedom of Speech has Limits

Social Media: An Employee’s Freedom of Speech has Limits

What are the limits of free speech and the right to publish personal political views and opinions about your employer as an employee?

Is there an unrestricted right to freedom of speech and expression of political views?

In Comcare v Banerji, (2019) HCA 7 August 2019, the High Court ruled that a dismissal of a public servant who used a Twitter account to post some 9000 tweets, many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament, was justified.

The decision has been widely criticised in some circles as contrary to and an erosion of a right of freedom of speech and political opinion.

Facts: Social Media and Freedom of Speech Case Study

The employee who was employed by the Department of Immigration and Citizenship began broadcasting tweets under the name, “Lalegale”.

A complaint was received that the employee was inappropriately using social media in contravention of the APS Code of Conduct.

The departmental guidelines explained that “[p]ublic comment, in its broadest sense, includes comment made on political or social issues at public speaking engagements, during radio or television interviews, [and] on the internet”, and cautioned that it was not appropriate for a Department employee to make unofficial public comment that is, or is perceived as, compromising the employee’s ability to fulfil his or her duties professionally in an unbiased manner (particularly where comment is made about Department policy and programmes); so harsh or extreme in its criticism of the Government, a member of Parliament or other political party and their respective policies that it calls into question the employee’s ability to work professionally, efficiently or impartially; so strongly critical of departmental administration that it could disrupt the workplace; or unreasonably or harshly critical of departmental stakeholders, their clients or staff. Similar, more extensive guidance was provided in Australian Public Service Commission Circular 2012/1 (“the APS Guidelines”), which recorded that, “[a]s a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed”.

In turn, the tenor of the APS Guidelines was further reiterated for employees of the Department in a document entitled “’What is Public Comment?’ Workplace Relations and Conduct Section Fact Sheet”.

Following an investigation, which found the account, “LaLegale” to be that of the employee, the employee was terminated for breaching the Australian Public Service (APS) Code of Conduct.

The employee challenged her termination including on grounds of an implied freedom of political communication guaranteed in the Constitution.

The Public Service as an Employer

Much of the Court’s judgement revolved around the specific provisions of the Public Service Act, and the essential elements for the functioning of the APS. The majority commented:

“Regardless of the political complexion of the government of the day, or its policies, it is highly desirable if not essential to the proper functioning of the system of representative and responsible government that the government have confidence in the ability of the APS to provide high quality, impartial, professional advice, and that the APS will faithfully and professionally implement accepted government policy, irrespective of APS employees’ individual personal political beliefs and predilections. To the same end, it is most desirable if not essential that management and staffing decisions within the APS be capable of being made on a basis that is independent of the party-political system, free from political bias, and uninfluenced by individual employees’ political beliefs. The requirement imposed on employees of the APS by ss 10(1) and 13(11) of the Public Service Act at all times to behave in a way that upholds the APS Values and the integrity and good reputation of the APS represents a rational means of realising those objectives and thus of maintaining and protecting an apolitical and professional public service. The impugned provisions are suitable in the necessary sense.”

The final comments before upholding the appeal were that:

“The respondent must be taken to have accepted that her conduct in broadcasting the “anonymous” tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11), and that, but for the implied freedom, the sanction of dismissal was warranted.”

Comment on Social Media and Freedom of Speech

It should be noted that this was not a case based upon the Fair Work Act provisions.

While this decision was based upon the particular environment of the public service in which the employee worked, and the specific regulatory framework around that environment, there are clear messages for employees in the private sector, that tweets or similar social media activity, even if anonymous, which are critical of the employer may lead to a lawful dismissal, particularly where there are clear policies prohibiting such conduct.

The publication of individual political views, and beliefs which offend the express policies of the employer, and the basic principles of the duties of fidelity owed to the employer, and go so far as to be critical of the activities of the employer and its business activities may well result in a lawful dismissal.

Social Media Policy- Message for Employers

The message for employers from this decision is to ensure that there are robust, but clear, fair and reasonable workplace policies in place, that employees are aware of and acknowledge the existence of them, and that any investigation into a breach of such policies which may result in a termination of employment is conducted with due regard to procedural fairness.

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