Australia: High Court says no entitlement to workers compensation for sacked public servant

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]
  1. 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.

  1. 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.

Samala Nancarrow Sara McRostie
Insurance Workplace Relations
Colin Biggers & Paisley

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions