IN BRIEF
A recent action in defamation commenced by a person engaged as a casual teacher for a period of 1 month at a country high school, has cast the spotlight on the need for employers generally, to ensure performance processes and assessments are handled with extreme caution.
In this instance, the teacher concerned has sued the State of NSW in a defamation action arising from him receiving a less than favourable ranking on his performance, based upon 1 month's casual teaching. The plaintiff's application to join as defendants, the person who completed the assessment form and the supervising teacher has now been successful.
The effect of the publication which was variously republished within the Department of Education, appears to have been, to damage the teacher's opportunities for receiving further teaching work within the Department.
Whilst the litigation is at an early stage, it directs attention to the need to be aware that assessment reports on employees may carry imputations which are defamatory, and which may have implications for the employees' future. In some circumstances, such as that described above, employers can find themselves on the receiving end of a writ of defamation.
However, the law of defamation contains, amongst others, a defence of qualified privilege which may be available both at common law and under statute. The common law defence of qualified privilege is available in circumstances where the law recognises that a person has a duty to publish information to somebody who has a corresponding interest in receiving it. The duty may be a legal, social or moral duty. Answering police inquiries, and communications between teachers and parents, local councillors, officers of companies and employers and employees are all relationships which are protected by qualified privilege.
As was said in Horrocks v Lowe (1975) AC 135 by Lord Diplock:-
"The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has... to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue."
The defence of qualified privilege may be defeated where publication is actuated by express malice. Express malice occurs where a purpose or motive that is foreign to the occasion of privilege, actuates the making of the statement. It includes any improper motive or purpose that induces a person to use an occasion of qualified privilege to defame another person.
It will be interesting to follow the progress of the teacher's' claim described above, in which the qualified privilege defence is likely to play a prominent role. For present purposes, employers need to remain alive to the need to be circumspect in terms of how employee assessments are conducted. Transparency and proper process should be ensured and the language used and conclusions drawn, supported by the evidence.
Thoroughness in this area will help protect against future arguments by an aggrieved employee that an employer has acted in an unreasonable or biased fashion or been negative about an employee's performance without having a proper basis for doing so. Indeed, attending to these matters might even deter an employee from contemplating defamation proceedings against their employer.
For further information please contact:
Richard Ottley, Partner
Phone: +61 2 9233 5544
Email: rbo@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.