Australia: To tweet or not to tweet: The High Court ruling on employee social media use

Last Updated: 29 August 2019
Article by Charles Power and Louise Rumble
Most Read Contributor in Australia, September 2019

Serving as a serious reminder to employees about their use of social media, the High Court has upheld Comcare's appeal of an Administrative Appeals Tribunal (AAT) decision which turned on whether an employee's anonymous tweets criticising her employer were a lawful reason for dismissal. See our recent article on the decision of the AAT here.

The decision concerned the termination of Ms Banerji's employment from the Australian Public Service (APS) in the (then called) Department of Immigration and Citizenship (Department). As an employee of the APS, Ms Banerji was required to comply with the Code of Conduct (Code) which requires, among other things, that employees behave at all times in a way that upholds the APS Values and the integrity and good reputation of the APS. 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.

Ms Banerji breached the above provisions of the Code when she broadcast more than 9,000 tweets between 2006 and 2012, using the twitter handle '@LaLegale', many of which were critical of the Department, other employees of the Department, policies and members of Parliament.

Following an investigation and disciplinary procedure, the Department decided Ms Banerji's conduct was inconsistent with her obligations under the Code and dismissed her for that reason. Ms Banerji claimed workers' compensation for an injury suffered from the dismissal. The claim was initially rejected on the basis that the termination was 'reasonable administrative action taken in a reasonable manner' and therefore any injury suffered by Ms Banerji was not an 'injury' within the relevant meaning.

The AAT overruled the decision to reject the workers' compensation claim on the basis that the decision to dismiss Ms Banerji 'unacceptably trespassed on the implied freedom of political communication' and that the decision was therefore 'unlawful' and not a reasonable administrative action.

However, the High Court ruled that the AAT was wrong to assume the implied freedom of political communication is a personal right of free speech. Rather, this implied freedom is a restriction on legislative power, extending only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. Specifically, 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.

The High Court gave short shrift to Ms Banerji's argument that the Code could not apply to anonymous tweets. The High Court considered that anyone who posts material online, particularly on social media websites, should assume that, at some point, their identity and the nature of their employment will be revealed, as was borne out by the facts of this case. 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 High Court held that the laws relied upon to dismiss the employee – that is to impose and enforce 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 this purpose and accordingly did not impose an unjustified burden on the implied freedom of political communication.

The impact of the High Court's decision

The High Court decision has a direct impact upon APS employees who would be well served to use social media with extreme caution. For the private sector, the decision serves as a reminder that employees have obligations of fidelity and loyalty to their employer, and social media use, including during personal time, can warrant disciplinary action where there is a sufficient connection to the employment and the employee acts contrary to the employer's interests.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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