Keep­ing the High Court deci­sion in Com­care v Baner­ji in perspective

The High Court deci­sion in Com­care v Baner­ji [2019] HCA 23, which relates to tweets by a Com­mon­wealth pub­lic ser­vant (tweet­ed under the han­dle @LaLegale) about gov­ern­ment poli­cies, has been hand­ed down. 

The court held that var­i­ous sec­tions of the Pub­lic Ser­vice Act 1999 (Cth) (Act), relat­ing to the Aus­tralian Pub­lic Ser­vice (APS) Code of Con­duct (Code) and APS Val­ues, which rel­e­vant­ly restrict­ed social media use by pub­lic ser­vants, did not impose an unjus­ti­fied bur­den on the implied free­dom of polit­i­cal com­mu­ni­ca­tion, mean­ing the ter­mi­na­tion of Ms Baner­ji’s employ­ment with the Com­mon­wealth was not unlawful. 

There has been some com­men­tary that this case will have wide­spread reper­cus­sions for free­dom of speech for all employ­ees, includ­ing those in the pri­vate sec­tor. With respect, I don’t agree with that assessment. 

A con­sti­tu­tion­al case relat­ing to Com­mon­wealth pub­lic servants

The con­se­quences of the case are almost entire­ly con­fined to Com­mon­wealth pub­lic servants.

There is an impor­tant pol­i­cy debate to be had about the appro­pri­ate­ness of the restric­tions in the Act on polit­i­cal expres­sion by Com­mon­wealth pub­lic ser­vants. They might (under­stand­ably) be dis­ap­point­ed and con­cerned about the rel­e­vant restric­tions being upheld. In this regard, the Baner­ji mat­ter might not have been an ide­al test case, as she fre­quent­ly tweet­ed about issues relat­ing to the port­fo­lio in which she worked, which even some strong crit­ics of the restric­tions con­cede gives rise to a poten­tial con­flict that is prop­er for the Com­mon­wealth to seek to address. 

With­out wish­ing to be glib or dis­mis­sive about these real and legit­i­mate con­cerns, it is not axiomat­ic that the expres­sion of polit­i­cal views by a Com­mon­wealth pub­lic ser­vant on social media will be a valid rea­son for ter­mi­na­tion or pro­vide the basis for a fair dis­missal. While the case affirms those parts of the Code and Val­ues restrict­ing social media use, the unfair dis­missal juris­dic­tion of the Fair Work Com­mis­sion will con­tin­ue to pro­vide pro­tec­tion for employ­ees, with all rel­e­vant cir­cum­stances being tak­en into account, includ­ing whether a ter­mi­na­tion for an offend­ing post or tweet is harsh giv­en the objec­tive grav­i­ty of the con­duct and the oth­er forms of dis­ci­pli­nary action avail­able in sec­tion 15 of the Act. 

Impli­ca­tions for pri­vate sec­tor employees

The case, inter­est­ing as it is, has lit­tle rel­e­vance to employ­ees who are not Com­mon­wealth pub­lic ser­vants. It is not a ​‘green light’ to pri­vate sec­tor employ­ers to ter­mi­nate employ­ees who express polit­i­cal or oth­er views on social media. Any pri­vate sec­tor employ­er who reads it as giv­ing carte blanche to restrict the polit­i­cal (or oth­er) expres­sion of their employ­ees on social media is read­ing too much into the deci­sion. The fun­da­men­tal prin­ci­ples still apply. There are risks for employ­ers who pur­port to reg­u­late out of hours (or ​‘pri­vate’) employ­ee con­duct (includ­ing social media) that has no or min­i­mal nexus with the legit­i­mate inter­ests of the employ­er. A pri­vate sec­tor employ­er who wants to ter­mi­nate the employ­ment of a staff mem­ber for post­ing polit­i­cal views on social media with which the employ­er hap­pens to dis­agree will find very lit­tle in the Baner­ji case to sup­port their (flawed) posi­tion. The body of Fair Work Com­mis­sion cas­es deal­ing with social media use by employ­ees (com­mon­ly based on the broad­er prin­ci­ples relat­ing to out of hours con­duct by employ­ees in Rose v Tel­stra Cor­po­ra­tion Lim­it­ed (1998) AIRC 1592) remain a more use­ful guide. 

Impli­ca­tions for the Folau case

Some peo­ple have sur­mised that the Baner­ji case, in adopt­ing a lim­it­ed read­ing of the implied free­dom of polit­i­cal com­mu­ni­ca­tion, presents a sig­nif­i­cant prob­lem for Israel Folau in his case (which has now been pro­gressed to the Fed­er­al Cir­cuit Court). There is no dis­cernible con­nec­tion between the two. The Folau case is based on, inter alia, an alleged breach of sec­tion 772 of the Fair Work Act. Unlike the Baner­ji case, it does not rely upon an implied con­sti­tu­tion­al free­dom. At best, and this is a stretch, the case gives a clue that the High Court might inter­pret sec­tion 772 of the Fair Work Act nar­row­ly (if, of course, the Folau case ever gets that far).