To tweet or not to tweet? That was the question
On 7 August 2019, the High Court of Australia handed down a unanimous decision in Comcare v Banerji  HCA 23, in which it held that the termination of a public servant’s employment (after she anonymously tweeted criticism of departmental policies) was constitutionally permissible. The High Court overruled an Administrative Appeals Tribunal (AAT) finding that the termination was in breach of the implied constitutional freedom of political communication.
Whilst the decision specifically relates to public sector employment, the High Court made a cautionary statement about the risks of anonymous social media posts. This caution applies to all employees, so employers should ensure their Social Media policies are up to date and able to deal with anonymous social media posts.
The employee, Ms Banerji, worked within the Department of Immigration and Citizenship (the Department) from 2006 to 2012. In this time, she operated a Twitter account under the handle @LaLegale. Using the account, Ms Banerji posted over 9,000 tweets commenting on Australian politics, criticising Australian immigration policy and individuals in the Department.
Following an internal investigation in 2012, the Department concluded Ms Banerji operated the Twitter account and her conduct in doing so was in breach of the Australian Public Servant (APS) Code of Conduct (Code). Under the Public Servant Act 1999 (Cth), the APS Values direct that the APS is ‘apolitical, performing its functions in an impartial and professional manner.’ Under the Code, public servants must ‘disclose, and take reasonable steps to avoid, any conflict (real or apparent) in connection with APS employment’. The Department terminated Ms Banerji’s employment on the basis that her criticism of the Department brought into question her capacity to work professionally and impartially. Ms Banerji attempted to avoid the termination of her employment with an application for an injunction to the Federal Circuit Court, which ultimately failed.
In 2013, Ms Banerji lodged a claim for workers’ compensation on the basis she suffered from an adjustment disorder characterised by anxiety and depression as a result of the termination of her employment. The Department defended the claim arguing that her injury was excluded from compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth), as it arose in circumstances of ‘reasonable administrative action’. Under the Public Servant Act 1999 (Cth), the Department was entitled to impose a sanction of termination. As such, the Department considered the termination of Ms Banerji’s employment was ‘reasonable administrative action’.
In 2018, the AAT determined the termination of Ms Banerji’s employment was invalid as it ‘impermissibly trespassed upon [Ms Banerji’s] implied freedom of political communication’. This decision was appealed to the High Court.
The High Court overturned the AAT decision. It did so on the basis that the implied constitutional right to freedom of political communication is not a personal right to free speech; rather, it is a restriction on legislative power to create laws that unjustifiably burden political communication as a whole.
The High Court rejected Ms Banerji’s argument that the APS Code unjustifiably burdened political communication as a whole, stating this was a ‘remarkable proposition.’ The High Court found that it is essential to the proper functioning of a democratically-elected government that the government can have confidence that its public servants will faithfully and professionally implement accepted policy, irrespective of individual personal political beliefs.
Ms Banerji argued further that she had not been in breach of the APS Code because her tweets had been anonymous and did not identify she was an employee or a representative of the Department. The High Court rejected this argument, stating that ‘…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’. The High Court observed that the facts of the case were illustrative of the risk of identification.
To her detriment, Ms Banerji relied on constitutional arguments which were resoundingly rejected by the High Court. The High Court alluded that she may have had better prospects had she brought a claim for unfair dismissal under the Fair Work Act 2009 (Cth), which allows a former employee to seek a remedy (reinstatement of compensation) from the Fair Work Commission in circumstances where his/her termination was ‘harsh, unjust or unreasonable’. The High Court observed a termination may be harsh because it is disproportionate to the gravity of the misconduct for which the sanction is imposed. In this sense, while Ms Banerji failed to show the termination was not a reasonable administrative action, she may have been able to demonstrate it was nonetheless harsh.
This decision relates specifically to the employment of public servants; the legal principles are not necessarily applicable to private sector employment. However, one point applicable to all employees is the cautionary statement from the High Court that ‘…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’.
Employers need to have in place a suitable Social Media policy which enables them to properly deal with employee posts on social media (both identified and anonymous) that impact their employment or the employer’s business. Nonetheless, as noted by the High Court, a termination (e.g. for social media posts) may be harsh because it is disproportionate to the gravity of the impugned misconduct. That is, employers should never rush to dismiss an employee for social media posts. Employers must ensure any dismissal is not only justified in fact and following a fair process, but also proportionate to the employee’s conduct.