NEWSFLASH: High Court rules on workplace Twitter case in Comcare v Banerji [2019] HCA

The High Court has struck down an AAT ruling that the Department’s dismissal of a public servant operating a Twitter account critical of the Department’s policies was unlawful on the basis of the implied freedom of political communication.

Background

Ms Banerji, an employee of the Department of Immigration and Citizenship operated a Twitter account “@LaLegale” criticising the Department, its policies, employees, and immigration policy during her employment. Tweets were posted during and outside work hours from a private device.

In March 2012, the Department received two internal complaints alleging that Ms Banerji was inappropriately using social media in contravention of the Australian Public Service Code of Conduct. Following an investigation into the allegation, Ms Banerji was dismissed.

In October 2013, Ms Banerji lodged a claim for compensation for a psychological injury she alleged to have suffered as a result of the dismissal. Ms Banerji’s claim was rejected on the basis that the Department’s dismissal constituted ‘reasonable administrative action.’

Department Guidelines

The Department has guidelines stating it was inappropriate for an employee to make unofficial public comment that could be perceived as compromising the employee’s ability to fulfil their duties in an unbiased or impartial manner, as required by employees of the APS.

Tribunal consideration

Ms Banerji took her claim to the AATA, who considered Ms Banerji’s obligations under the APS guidelines against the implied freedom of political communication. The AATA ultimately held that the use of the APS as reason for termination of Ms Banerji’s employment trespassed on her implied freedom of political communication.

High Court Decision

The High Court considered that the AATA’s approach was ‘misconceived’ due to its interpretation of the implied freedom of political communication, which:

‘…is not a personal right of free speech…even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.’ [20]

Ms Banerji argued that although her conduct breached the APS Values and reputation of APS, Parliament was precluded from prohibiting the conduct due to the burden placed on the implied freedom of political communication.

The decision of the Tribunal was set aside, and Ms Banerji was ordered to pay the Department’s costs.

Implications for employers

While this decision occurred in the unique legislative context of the Australian Public Sector, it is a reminder that employees must ensure that their use of social media does not breach their employment obligations.

Although the political opinion protections in the Fair Work Act 2009 have yet to be tested, this decision indicates that employees may have difficulty relying on the ‘implied freedom of political communication’ to challenge an employer’s decision to dismiss or take disciplinary action for expressing a political opinion where such opinion breaches their duties to their employer.