What would your board do if an employee took aim on social media?

Sunday, 01 December 2019


    Comcare v Bajeri raised issues of free speech following the publication of derogatory comments on social media. Here are four lessons for directors and CEOs, from senior lawyer Sarah Byrne.

    There has been plenty of recent media attention on the issue of employees’ use of social media to engage in commentary that is at odds with the interests of their employer. Israel Folau’s unfair dismissal case against Rugby Australia and Michaela Banerji’s sacking from the Department of Immigration and Border Protection have been squarely in the spotlight. While the Folau matter is yet to be resolved, the High Court ruled against Banerji in August.

    What lessons for directors emerged from that decision? The answer, in brief, is not as many as some headlines have suggested. While superficially similar, the Folau and Banerji cases are fundamentally very different. Folau was employed under contract with a private sector organisation and used his public profile to tweet commentary at odds with that organisation’s values. Banerji was a public servant employed under the Public Service Act 1999 (Cth) who posted comments on Twitter under the pseudonym “LaLegale” that were directly critical of her employer, her colleagues and members of parliament.

    These differences matter because the High Court’s decision in Comcare v Banerji was not about whether an employer can dismiss an employee for criticising it on social media. On appeal, a court can only consider the matters that were argued in the court or tribunal below, and Banerji had not previously argued, at the Administrative Appeals Tribunal (AAT), that her dismissal was harsh or unreasonable. In fact, the High Court stated it was regrettable she had effectively accepted her sacking was an appropriate sanction, preventing the court from considering the issue.

    So, Comcare v Banerji is not an authority for dismissing an employee for her behaviour on social media. As a side note, though, the judges pointed out there are a variety of penalties available to an employer and sacking is at the extreme end of them. That might be useful fodder for an employee seeking to argue that dismissal is “harsh and unreasonable” where the infraction was objectively minor.

    It is significant that Folau is arguing freedom of religion, whereas Banerji was arguing freedom of speech, or the nearest relation it has in Australia, which is the implied constitutional freedom of political communication. Unfortunately, both she and the AAT seem to have completely misunderstood what that freedom involves.

    The High Court, confirming a long line of precedents on the subject, highlighted that Australia does not recognise a personal “freedom of speech” right as it exists in the US or Canada. Freedom of political communication only means that parliament can’t enact laws that would place an “unjustifiable burden” on the freedom of political discourse in general.

    Banerji argued on appeal that the provisions of the Act were invalid because they infringed this freedom of political discourse. The High Court disagreed; the Act only affects public servants, and the Constitution is so express in its intention that the public service be apolitical that it is an appropriate limit.

    It should be noted that the Act does not prevent public servants from any political activity, only where it is such that it would bring the service into disrepute. Whether Banerji’s tweets achieved this was not a matter for the High Court to consider, although it observed it is a matter of context and degree. But despite the media claiming this decision allows employers to sack employees for social media posts, this case has little application to the private sector.

    Another matter Banerji raised for the first time in the High Court was that the legislation did not apply to anonymous tweets. While the court could not rule on this point, it did suggest it was unlikely anonymous tweets would be found to be more deserving of protection than those for which the author was prepared to own responsibility.

    This is likely to be a point of difference in the private sector, where the connection between the employee and employer is a key reputational factor.

    Lessons from Banerji

    Some lessons that directors and CEOs, including those from the private sector, can take away from Banerji are:

    1. Provide clear guidelines in respect to employees’ social media use.
    2. Ensure guidelines are reasonable and appropriate.
    3. Treat each case individually, ensuring sanctions are appropriate to the infraction.
    4. Because there is no implied duty of loyalty in Australian employment contracts, ensure that your contracts clearly spell out expectations in this regard.

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