Defama­tion alleged in rela­tion to teacher per­for­mance report

In Brief

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 extreme caution.

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 Diplock:-

​“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 employer.