In the eternal struggle between individual liberty and social cohesion, one aspect where this is now playing out involves freedom of expression vs contractual obligations to employers and the arena is Social Media.

The famous Australian rugby player, Israel Folau, sent out this Instagram post: “Warning – Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolaters. HELL AWAITS YOU. REPENT! ONLY JESUS SAVES.”

Folau was dismissed from his employment with Rugby Australia and is bringing Federal Court action based in part (as we understand it) on his right to express personal views in his own time.

Comcare v Banerji – High Court of Australia

His solicitors will no doubt be checking the High Court’s decision in Comcare v Banerji, delivered on 7 August 2019.  Ms Banerji was employed by the Commonwealth Department of Immigration and Citizenship.  As the decision records, “she began broadcasting tweets on matters relevant to the Department, using the Twitter handle “@LaLegale”. There were more than 9,000 such tweets, at least one of which was broadcast during the respondent’s working hours, and many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament…some of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures”.

Ms Banerji was dismissed and later brought proceedings for compensation for psychological injury arising out of the termination of employment.  The High Court allowed the Appeal by Comcare, rejected the compensation claim and ordered Ms Banerji to pay legal costs.  The bases of the decision, or the principles that seem to arise from it, include the following:

  1. There is no legal right of free speech in Australia, unlike the situation in Canada or the USA for example. There is an implied restriction on the Australian Parliament that it cannot make laws that unduly restrict freedom of political communication.  This is a societal right, not an individual one;
  2. The Public Service Act could validly impinge on political communication by public sector employees because the Australian public service is designed to be apolitical, and public servants were meant to implement government policy not criticise it;
  3. There was no such thing (in reality) as an anonymous social post: “as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.”
  4. If an employee acts in his/her own time in a way that adversely reflects on the integrity of their employer, this can give an employer the right to take action if such a situation is proscribed in the contract of employment or employer policies.
  5. A citizen of Australia is a part of a political system that endorses freedom of communication on political matters.  We are free to give our rulers a spray, and we do so often. But if we choose to work for a mob that requires us to exercise restraint and moderation in that space for proper reasons, their right to do so may have to be respected too.

Employees should therefore bear in mind: [A] No social media is or stays confidential or anonymous; [B] Don’t just read your contract of employment, read the policy and procedure manual as well; and [C] If out of hours opinion might cut across work-time reputation, perhaps keep it to yourself!

For further information please contact Peter on 8362 6400 or email Peter JakobsenJoin our mailing list to receive updates and advice on current issues.

  • Peter Jakobsen

    About the author: Peter Jakobsen

    Peter has a wealth of experience in many areas of the law but practises primarily in the areas of civil and commercial litigation including employment matters, negligence, defamation, leasing and contractual disputes and debt collection.

    Peter is a skilled and clever advocate that brings all of his intelligence and significant Court room experience to each and every matter to achieve excellent results for his clients.

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