One of the fundamental obligations of an employee is to comply with employers reasonable and lawful instructions. Some employers prohibit employees from making comments about controversial issues. Generally speaking, a policy which prohibits employees from commenting on public forums during work hours will be regarded as a reasonable and lawful direction. A sufficiently clear and unambiguous policy would stop that activity.
More difficult issues arise where an employee uses his or her own device and makes the comment in his or her own time. What right does an employer have to control that activity? Interesting issues arise about whether an employee has an implied right to freedom of speech.
Kells was involved in an important case of Starr vs. The Department of Human Services and here is the case for reading. In the case, our client, in his own time made a number of comments about political matters and clients of Centrelink. The department investigated the matter and subsequently dismissed Mr Starr.
We were successful in obtaining an order that he be reinstated to his employment. The case was not determined on the basis that Mr Starr had an implied right to political expression, but rather that the dismissal of Mr Starr, against the background of over 20 year’s employment, was harsh.
Interesting issues have also arisen in Banerji and Comcare. This was heard in the High Court in March 2019. An employee of the then Department of Immigration and Citizenship made a number of anonymous tweets through a Twitter handle Lalegale. These tweets were critical of the government, the department and a colleague. The department investigated the matter and found there was a breach of the code of conduct. Ms Banjeri sought to restrain the department from dismissing her but was unsuccessful. She was successful in obtaining compensation.
In her compensation case, she successfully argued that the department was not acting reasonably. The basis of this argument was that it was not reasonable for the department to infringe on the freedom of political expression to such an extent that it could dismiss an employee for making anonymous comments. A decision is expected in the next few months and this will provide useful guidance on this difficult area.
In summary whether an employer can dismiss an employee for internet posts depends upon a number of factors including:
- What policy is in place.
- Whether the post or tweets were made anonymously; and did any of the content link the comments to the workplace.
- What was said in the tweets or post.
- Other factors including the employees length of service.
- The employee’s response to the complaints and whether or not a fair investigation was launched.
If you need advice on staff commenting in public forums, please contact our employment team today.
This article was written by Partner David Potts.