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
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
"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
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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