Comcare v Banerji [2019] HCA 23 (7 August 2019)

The High Court has upheld an appeal by Comcare against a finding by the Administrative Appeals Tribunal (the “Tribunal”) that the termination of a public servant’s employment, for breaching the Australian Public Service Code of Conduct (the “Code of Conduct”) was unlawful.

Ms Banerji was employed by the Department of Immigration and Citizenship (the “Department”). During her employment, she published over 9000 tweets regarding matters relevant to the Department, using an anonymous twitter handle. The tweets were critical of the Department, its employees, its policies, Government and Opposition policies and members of Parliament.

The Tribunal found that “[s]ome of the tweets are reasonably characterised as intemperate, even vituperative, in mounting personal attacks on government and opposition figures“. At least one tweet had been published during Ms Banerji’s working hours.

After investigating the matter, the Department found the tweets constituted a breach of the Code of Conduct and terminated Ms Banerji’s employment.

Ms Banerji subsequently lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the “Compensation Act”) for an “injury” arising out of the termination of her employment.

This claim was rejected by Comcare on the basis that termination of Ms Banerji’s employment was reasonable administrative action taken in a reasonable manner. Accordingly, Ms Banerji was determined not to have suffered an injury within the meaning of the Compensation Act.

Implied freedom

The High Court noted that the Tribunal approached the matter on the basis that the implied freedom of political communication was a “personal right”, similar to the freedom of speech granted by the Constitution of the United States. The High Court held that this approach was incorrect, and that the implied freedom only extends as far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution.  That is, the implied freedom of political communication is not a personal right, but rather a limitation on the power of the Parliament to make laws which impact on the freedom.  The Court specifically noted:

“ … Accordingly, although the effect of a law on an individual’s or a group’s ability to participate in political communication is relevant to the assessment of the law’s effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law’s effect on political communication as a whole. …”

The High Court held that the freedom will not necessarily be breached even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication. The High Court also rejected Ms Banerji’s argument that the anonymous nature of the communications excused her conduct, finding that damage to the Department could occur regardless of whether the author’s identity was exposed.

What does this mean for the Fair Work Act 2009?

To date, the general protection in the Fair Work Act 2009 prohibiting employers from taking adverse action against an employee because of their “political views” has not been tested.

While confined to its facts, the Banerji decision suggests that, if tested, the general protection will not extend to providing employees with an unfettered right to publicly express their political views, at least in circumstances where those views are inconsistent with the employee’s obligations to their employer.

However, employers should proceed with caution. The decision is not authority for the proposition that every employee who broadcasts political (or other) views that are inconsistent with their employer’s views can be dismissed. If an employee engages in such conduct, employers will need to consider all the relevant factual circumstances before deciding what, if any, disciplinary action is appropriate. Importantly, employers should ensure:

• their contracts of employment and employment policies provide clear direction to their employees with respect to the conduct, including social media usage, that is not acceptable;
• that conduct which is unacceptable to the employer (and therefore prohibited by the contract or policies) has a legitimate and reasonable connection to the employer’s business and the employee’s role; and
• employees and all new-starters are provided with regular and comprehensive training with respect to those policies.