Social Media Post Leads To Sacking Of Public Servant

By Renee Karakinos, Lawyer, MST Lawyers

Posting your thoughts and opinions on your social media pages has a broader reach than you might think. While you may think that your comments start and finish on your social media page, we are seeing a rise in the number of occasions where posts have resulted in the termination of employment. On 7 August 2019, the High Court unanimously allowed an appeal from the Administrative Appeals Tribunal in the case of Comcare v Banerji [2019] HCA 23 setting a new precedent for Australian bureaucrats.

Background

Public servant, Ms Michaela Banerji, was recently unsuccessful in the High Court appeal over a decision by the then Department of Immigration and Border Protection to terminate her employment in 2013 for Tweets from her Twitter profile “LaLegale” relating to the government’s stance on immigration.

Ms Banerji had broadcasted more than 9,000 tweets, many of which were critical of that Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies and members of Parliament.

Following an investigation into Ms Banerji’s social media affairs, a delegate of the Workplace Relations and Conduct Section of the Department determined that Ms Banerji had breached the APS Code of Conduct (the Code) and proposed a sanction of termination of employment. After providing Ms Banerji with opportunities to respond to the proposed sanction, the delegate decided to impose that sanction under section 15(1) of the Public Service Act 1999 (Cth), and Ms Banerji received a notice of termination.

Ms Banerji initially challenged her termination of employment with an unsuccessful unfair dismissal claim. However, she received more traction through a workers’ compensation case where the Administrative Appeals Tribunal agreed that Ms Banerji’s employment termination on account of her social media tweets was unreasonable, on the grounds of freedom of political communication.

High Court Decision

The recent decision by the High Court effectively overturned the Tribunal’s decision, rendering Ms Banerji’s employment termination within the limits of reasonableness.  The employment termination was lawful because the Code did not impose an unjustified burden on the freedom of political communication and was proportionate to the goal of ensuring an apolitical APS.

The verdict effectively spells out that the termination of employment of public servants for expressing their political views through their own social media accounts is allowed.

The Legality Of Out Of Work Conduct And Dismissals

Dismissals for out of work conduct, including social media posts on an employee’s personal profile, are well known to be reasonable grounds for dismissals, if such misconduct:

• is likely to cause serious damage to the relationship between the employer and employee;
• damages the employer’s business interests; or
• is incompatible with the employee’s duty as an employee.

For further information concerning the legality of dismissals for out of work conduct, please see below links to previous articles which have been written by MST Lawyers:

• “There is no such thing as being “off the clock” published on 20 February 2018;
• “The rise of social media issues in employment” published on 24 September 2012;
• “Social media: Where does work end and life begin” published on 1 April 2010; and
• “Facebook: Facing the consequences” published on 29 April 2009.

Conclusion

Employees should err on the side of caution before they post on their social media platforms and ask themselves before posting, could this post have a disparaging effect on my relationship with my employer or potentially be incompatible with existing company policy?

Employers should also ensure they have an up-to-date social media policy within their employee handbook, which reflects the effect of destructive out of work conduct.

Overall, the above decision could potentially heighten Rugby Australia’s prospect of winning against Mr Israel Folau, who understands that his social media posts were subject to freedom of speech, freedom of religion and bigotry.

Watch this space.

For more information, please contact the MST Lawyers’ Employment Law team by email or by telephone  +61 3 8540 0200.