By Charles Power

You can set rules for what your employees can say and do outside their work, provided there is a relevant connection with their employment. When your employee disparages your business in their own time they may breach their contractual duty of ‘fidelity and loyalty’ to you because they have done something in their own personal interests that is contrary to your interests.

In the public sector, these contractual duties are underpinned by laws made by the Commonwealth Parliament, which require employees of the Australian Public Service (APS) to observe a Code of Conduct (Code).

The Code requires (amongst many other things) APS employees at all times to behave in a way that upholds the APS Values and the integrity and good reputation of the APS. The APS Values include that the APS is apolitical, performing its functions in an impartial and professional manner. Departmental and APS guidelines caution against unofficial public comment and recorded a “rule of thumb” that anyone posting material online should assume that their identity and employment would be revealed.

The High Court in Comcare v Banerji (2019) recently considered these provisions of the Code.  This was in a case concerning an employee in the Department of Immigration and Citizenship who was dismissed because she had breached the above provisions of the Code when broadcasting tweets on matters relevant to the Department, using the Twitter handle “@LaLegale”.

There were more than 9,000 such anonymous tweets, at least one of which was broadcast during the working hours and 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.

The employer believed this conduct was inconsistent with the above provisions of the Code and dismissed her for that reason. The employee claimed workers’ compensation for an injury suffered from the dismissal.

The claim was initially rejected on grounds that the dismissal was reasonable administrative action taken in a reasonable manner in respect of the claimant’s employment. This rejection was overruled by the Administrative Appeals Tribunal on grounds that dismissal for breach of the Code cut across the employee’s implied freedom of political communication. The matter then found its way to the High Court.

The High Court ruled that the Tribunal was wrong to assume the implied freedom of political communication was a personal right of free speech. Rather, this freedom operated to limit the operation of laws if they imposed an unjustified burden on the implied freedom of political communication.

The High Court scotched the argument that the Code couldn’t apply to anonymous tweets. The Court considered that anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.

Where an APS employee broadcasts tweets which are critical of their employer’s policies and their identity is discovered this will raise doubts about the employee’s capacity to work professionally, efficiently and impartially. It would also damage the reputation of the APS even if the author’s identity and employment are never discovered.

The Court held that the laws relied upon to dismiss the employee – that is to impose and enforce the requirements in the Code – were directed towards a proper purpose being the maintenance and protection of an apolitical and professional public service. The laws were reasonably appropriate and adapted or proportionate to the above purpose and accordingly did not impose an unjustified burden on the implied freedom of political communication.

This case is an interesting analysis of the implied freedom of political communication arising under the Australian constitution, but it does not have direct relevance for private sector employers who are seeking to limit what employees say about them online in their own time.