In brief - Implied freedom of political communication is not a personal right of free speech

Despite there being no constitutional right afforded to Australians, "freedom of speech" is the catchphrase of the moment in media and social media forums. This is particularly so as the nation awaits the outcome of Israel Folau's Federal Court challenge against Rugby Australia's decision to terminate his employment on grounds his social media ramblings breached his contract of employment by failing to uphold the values and integrity of Rugby Australia. There are, however, a number of implied freedoms which have been recognised by the High Court. 

It is not every day these constitutional notions intersect with a workers' compensation claim, but that was the set of facts facing the High Court in its recent decision in Comcare v Banerji [2019] HCA 23

Background

Banerji was employed by the Department of Immigration and Citizenship. In May 2012, the Department received two complaints arising from a number of the respondent's social media communications. The subject communications consisted of more than 9,000 tweets posted by  Banerji under the "anonymous" Twitter handle @LaLegale. They are described as being highly critical of the Department, including its employees, policies and administration, immigration policies and various members of Parliament. 

The Department launched an investigation as to whether Banerji's communications breached the Australian Public Service Code of Conduct. A report was compiled and Banerji was given numerous opportunities to respond. In September 2012, the Department made a determination that there had been a breach of the code and proposed a termination of Banerji's employment. 

Banerji issued proceedings in the Federal Circuit Court seeking an injunction to restrain the Department from terminating her employment. The Court rejected that application and her employer ultimately terminated her employment effective 27 September 2013.

On 18 October 2013, Banerji made a claim for compensation in respect of a psychological condition arising out of the termination of her employment.

Comcare rejected liability for the claim on grounds that the injury arose out of reasonable administrative action. The Administrative Appeals Tribunal overturned that determination and Comcare appealed to the Federal Court. The Attorney-General took an interest in the matter such that the appeal was removed into the High Court for consideration. 

Relevant legislation

Section 10 of the Public Service Act 1999 (PSA) defines the values associated with the Australian Public Service (APS), including but not limited to the requirement for the APS to perform its functions impartially and fairly (ss 10(a)) and deliver its services fairly, effectively, impartially and courteously to the Australian public (ss 10(g)). 

Section 13 of the PSA sets out the APS Code of Conduct which requires the APS, amongst other things, to behave:

  1. honestly and with integrity in the course of employment; and

  2. in a manner which upholds the APS values, integrity and good reputation of the APS (ss 13(11)). 

Section 15 of the PSA provided for the establishment of procedures when there is a breach of the APS Code of Conduct and prescribed a range of sanctions when a breach has been determined. Those sanctions included termination of employment. Guidelines were also prescribed which assisted employees to understand the nature of their obligations under the PSA. 

The workers' compensation claim was made pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). Section 5A(1) of the SRC Act defines injury to include "an injury suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment" but specifically excludes "a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment."

The appeal

Comcare and Banerji agreed that the termination of employment was "reasonable administrative action taken in a reasonable manner in respect of her employment" as defined by section 5A of the SRC Act, unless she could establish the termination fell outside that description having regard to the implied freedom of political communication.

The High Court explained:

the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government… [20]

Banerji relied on three grounds for her appeal:

1. Anonymous communications did not fall within the scope of the APS Code of Conduct provisions.

This was not formally dealt with as it was not an argument which had been run at first instance. Nevertheless, Kiefel CJ, Bell, Keane and Nettle JJ did not accept anonymous communication could not fail to uphold the integrity and good reputation of the APS and said:

"anonymous" communications are at risk of ceasing to be anonymous, and thereby damaging the integrity and good reputation of the APS as an apolitical and professional public service. Further, as has been explained, depending on the circumstances and the content of the "anonymous" communication, the communication may damage the good reputation of the APS even while it remains anonymous. [36]

2. The ability to terminate employment provided for by the PSA imposed an unjustified burden on the implied freedom of political communication. 

Banerji accepted that her communications had breached the APS Code of Conduct by undermining the values, integrity and good reputation of the APS. Effectively her argument was that despite the fact her conduct breached section 13 of the PSA, Parliament was precluded from allowing employment to be terminated because it was an unjustified burden on the implied freedom.

It was likewise conceded by the Attorney-General that the operation of sections 10 and 13 of the PSA imposed a burden on the implied freedom of political communication. The question for the High Court then became whether the burden was justified or unjustified. This required a review of whether:

  1. the offending law was for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution, and 

  2. whether that law was reasonably appropriate and adapted to the achievement of that objective [29] 

Understandably, it considered that the law operated for "the maintenance and protection of an apolitical and professional public service" [31] and as such was a law enacted for a legitimate purpose. It further found that the law was suitable, necessary and adequate in the circumstances. 

Importantly, a breach of the APS Code of Conduct rendered Banerji liable for no greater penalty than that which was proportionate to the nature and gravity of her misconduct. As such, sections 10 and 13 did not impose an unjustified burden on Banerji's right to political communication. 

3. Finally and in the alternative, if there was no such burden, the Department had failed to explicitly take into account the effect of her implied freedom. 

This argument was also rejected. So long as the decision maker who imposed the termination of employment had acted reasonably and imposed a penalty which was proportionate to the nature and gravity of the misconduct and the personal circumstances of the employee, there was no infringement on the implied freedom. 

Implications of the Banerji decision outside the public service 

The High Court's ruling in the Banerji case has limited application outside the public service. The implied freedom of political expression could be considered in the Banerji case because the APS Code of Conduct and the Department's power to dismiss Banerji were contained in legislation. This allowed Banerji to argue her employment was subject to the implied freedom of political communication. 

Employees in the private sector cannot invoke the implied freedom of political communication.  Other protections apply to corporate employees under the Fair Work Act 2009. These protections prohibit termination of employment on particular grounds, including on the basis of an employee's political opinion or religious beliefs.  

However, the protections do not provide employees with an unfettered right to breach their employment obligations by making public statements that may damage their employer's interests or the employment relationship.  In Little v Credit Corp Group Limited [2013] FWC 9642 the Fair Work Commission said:

[an employee] is perfectly entitled to hold views about any organisation and to express such views in the public domain; but [they are] not entitled to do so in a manner which injures [their] employer’s business relationship with that organisation.

Fair Work Commission finding in Murkitt v Staysafe Security 

The Fair Work Commission recently considered a similar set of facts to Banerji in Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622. In this case, the criticism of the employer company was confined to one Facebook post in which Murkitt stated she had loved her job until "3 Victorians" had bought the company and "changed everything." The new directors "don’t care for clients" and "don’t care for their staff." 

The employer summarily terminated Murkitt's employment for gross misconduct arising from the social media post. It relied on a clause in her employment contract which provided she was not to "intentionally do anything that is or may be harmful to the company."

At the time of the social media post, Murkitt was suffering from a work-related psychological injury and receiving workers' compensation. She had been absent from work for a number of months at the time of the post. 

The Commissioner found the employer had a valid reason for dismissing Murkitt, as her Facebook post was critical of the employer. The Commissioner also commented that it was not relevant that Murkitt's privacy settings on Facebook were strict, as "the fact the post became available to and the topic of conversation in the workplace is a sufficient connection." 

The Commissioner then weighed up the termination in the context of the worker's medical condition, her length of service and the lack of any prior performance issues, coming to the conclusion that the termination was not proportionate in the circumstances. 

While the legal arguments underpinning the cases of Banerji and Murkitt differ, the same underlying principle applies: if an employee's use of social media is contrary to an employer's interests and falls outside the employer's behavioural expectations, it can lead to dismissal.  

Lessons for employers in light of Banerji and Murkitt

The recent authorities confirm that while employees are entitled to have their own opinions, they also have obligations to ensure their social media activity does not conflict with their employment duties.

As such, it is imperative that employers regularly review their core values, conduct rules and social media policy so employees clearly understand the terms and obligations of their employment. Ideally, grievance policies should clearly set out a process and procedure for any complaint received and the investigation which ensues. The process should adhere to principles of procedural fairness. 

Any person involved in the investigation of a breach should understand the policy and ensure they adhere to each step throughout the investigation process. This will be significant if an employer is to successfully argue, in workers' compensation matters, that reasonable management action was taken and conducted in a reasonable manner. 

Finally, Banerji and Murkitt highlight that an employer should act reasonably and ensure they impose a penalty which is proportionate to the contravention, as well as to the employee's personal circumstances. 

To view the HR Highlights webinar which discusses issues of Freedom of Speech vs Employee Codes of Conduct, in particular, the High Court decision against Michaela Banerji and the Israel Folau case, click here.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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