Here is an example of a ruling that makes clear that employees who make personal or anonymous social media posts which conflict with the obligations or values set out in their workplace code of conduct may be dismissed as a result.
On the 7 August the High Court handed down a landmark ruling in the case of Comcare v Michaela Banerji, with important implications for employers and employees alike.
Banerji was a public servant working in the Department of Immigration and Citizenship. She was fired in 2013 after it was discovered that she was the owner of an anonymous twitter account, “@LaLegale”, which she frequently used to make posts criticising the Department, the Australian Government, its policies and employees. The reason given for her dismissal was that she had breached the Australian Public Service Code of Conduct, in particular, a requirement that APS employees “at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS”.
At the Administrative Appeals Tribunal it was found that her dismissal had impeded her implied right to freedom of political communication contained in the Constitution.
However, the High Court has now overturned that decision, ruling that the code of conduct did not impose an unjustified burden on her freedom of political communication. The code of conduct was held to be appropriate and proportionate to its purpose of maintaining an apolitical public service.
This judgement shows that the courts are willing to lend considerable value to the duties and obligations that an employer sets out in their code of conduct. For this reason it is important that employers ensure they maintain a comprehensive and robust code of conduct. Not only will this help to set clear standards and expectations for employees, but it may also be an invaluable tool in avoiding legal disputes.
If you are an employer who requires assistance implementing or reviewing your workplace code of conduct or would like a deeper discussion of the issues raised in this article, JFMLAW is here to help. Contact us on 02 9331 0266 or fill out the contact form below.