Think before you tweet: implied freedom of political communication insufficient to prevent disciplinary action
In the case of Comcare v Banerji (2019), the High Court rejected the notion that an employee was not protected by the freedom of political communication, when her employment was terminated on the basis of anonymous tweets critical of her employer, the Department of Immigration and Citizenship.
An employer can set rules for what its employees can say and do outside their work, provided there is a relevant connection with their employment.
When an employee disparages the business in their own time, they may breach their contractual duty of ‘fidelity and loyalty’ to their employer because they have done something in their own personal interests that is contrary to employer’s.
Code of Conduct implications
In Banerji, these contractual duties were underpinned by Commonwealth laws applicable to an employee of the Department of Immigration and Citizenship (Department), which, as an employee of the Australian Public Service (APS), required her to observe a particular Code of Conduct (Code).
Amongst other things, the Code required 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 also cautioned 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.
In Banerji, an employee was dismissed after it was discovered that she broadcasted 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 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.
Following her dismissal, the employee claimed workers’ compensation for an injury suffered from the dismissal but was initially rejected on grounds that the dismissal was reasonable administrative action taken in a reasonable manner in respect of the claimant’s employment.
However, this rejection was overruled by the Administrative Appeals Tribunal on grounds that dismissal for breaching the Code cut across the employee's individual “implied freedom of political communication” under the Constitution.
The matter then found its way to the High Court.
High court decision
At its core, the implied freedom of political communication refers to a constitutional restriction on the creation of legislation which hinders individuals’ ability to engage in “political communication”, by discussing and criticising legislation, policy, and the government itself.
This freedom is referred to as an “implied” freedom, because it is not expressly stated in the Constitution.
Instead, it arises from a necessary implication that in order to have an effective democracy, individuals must be able to engage in discussion about the elected government and its policies.
However, in Banerji, 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 is a question of a law’s effect, and whether it imposed an unjustified burden on the implied freedom of political communication.
The High 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: the maintenance and protection of an apolitical and professional public service.
The laws were reasonably appropriate and adapted to that purpose, without imposing an unjustified burden on the implied freedom of political communication.
Accordingly, the implied freedom of political communication did not apply to restrain the employer from imposing and enforcing the requirements in the Code, to dismiss the employee.
What does this mean for you?
The relevance of this case is that where an employee’s comments or criticism of their employer falls into the type of expression and public comment designed to be protected by the implied freedom of political communication, that freedom does not apply to give an employee a personal right to override their contractual duty of “fidelity and loyalty”, and freely disparage their employer.
In turn, if an employee’s disparagement – even anonymously, outside of work – breaches this contractual duty, an employee is not immune from an employer’s right to take disciplinary action against the employee.
The principles of this case are directly relevant to IEUA-QNT members, as teachers employed in non-government schools may be caught by similar codes of conduct published by their school.
For example, applying the principles of Banerji, a non-government school teacher who anonymously authors and publishes numerous Facebook posts which severely criticise their school, the religious order running their school or their school board will not be protected by the implied freedom of political communication.
Depending on the extent and nature of the criticisms, the teacher may have breached the school’s Code of Conduct and may face disciplinary action accordingly.
As a result, the High Court’s decision in Banerji sends a strong, relevant message, that employees should be cautious about social media posts and expressions disparaging their employer, even if made anonymously, in their own personal time, or for the purpose of advancing political comment.