Social Media and the Workplace - Out of Hours Conduct

LG Leader June 2018

Social media now regularly features in many employment law cases, often because of dispute over how far an employer may regulate the out-of-hours conduct of their employees.

The leading case dealing with out-of-hours conduct is Rose v Telstra Corporation Ltd (unreported, AIRC, Ross VP, 4 December 1998) which held that:

“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

•  the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
•  the conduct damages the employer’s interests; or
•  the conduct is incompatible with the employee’s duty as an employee.”

 The recent case of Banerji v Comcare (Compensation) [2018] AATA 892 has forced additional considerations into this test when considering social media.

Ms Banerji was employed with the Department of Immigration and Citizenship when her employment was terminated on the basis that she had breached the Australian Public Service Code of Conduct. The conduct relied upon by the Department as the basis for the breach was Ms Banerji’s use of a Twitter account to post tweets which were highly critical of the then Government, the then Minister, certain policies of the Department and the Department’s Communications Manager.

Ms Banerji’s tweets were originally anonymous, but her identity was revealed and complaints were made about her conduct. Ms Banerji first sought, unsuccessfully, to seek an injunction preventing her termination. Later, after her termination for breach of the Code of Conduct, she brought proceedings for relief relating to the termination. The proceedings were later settled in confidence.

Ms Banerji later lodged a claim for worker’s compensation for post-traumatic stress disorder arising from the termination. This claim was initially rejected, and review of the decision was sought by the AAT.

The Tribunal had to decide whether the act of termination was reasonable administrative action. Ultimately, it found that the Code of Conduct seriously impinged the implied constitutional freedom of political communication, and therefore the act of termination in reliance on this Code was unlawful and cannot be reasonable administrative action.

What does this mean for councils?

Employees of councils are often in similarly sensitive political positions as that occupied by Ms Banerji. It is essential that Council has a considered, clear policy on social media, both work-related social media, and personal social media so far as it impinges on the council’s interests. However, a policy which trespasses on the implied freedom of political communication may be held to be unlawful, and action taken in reliance on such a policy may accordingly also be unlawful.