The recent decision of Banerji and Comcare (Compensation)  AATA 982 is an interesting case on the issue of discussing employment online.
By now it should be obvious that bagging your employer in this way (be that Facebook, Twitter, or a blog) can cost you your job.
There are numerous cases of employees ranting online, either using their real name or with poorly considered pseudonyms (almost as bad as @notmbaldwin). The inevitable outcome when this comes to the attention of employers is termination of employment.
In Banerji, the worker was an employee of the Department of Immigration. Using an anonymous Twitter account (@Lalegale) commenting on (ie criticising) Department policy and her direct supervisor (but not disclosing any confidential information).
An employee lodged a complaint, alleging the worker’s use of social media was in contravention of the Australian Public Service code of conduct (APS code).
After an investigation, and facing termination of her employment, the worker admitted to sending the tweets and sent a written apology to her supervisor. She sought a Federal Court injunction to prevent her termination, which was ultimately unsuccessful. Her employment was then terminated effective 13 September 2013.
The compensation claim
She then lodged a Comcare claim under the Safety, Rehabilitation and Compensation Act 1988, alleging an adjustment disorder with depression and anxiety contributed to by her termination.
Comcare denied the claim, on the basis that her condition was excluded under Section 5A(1), being the result of reasonable administrative action taken by the employer (her termination).
The worker then commenced Administrative Appeals Tribunal proceedings. She claimed her termination had not been reasonable administrative action, as it was a breach of her implied freedom of political communication in line with Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Comcare argued the worker had used social media during work hours, and the Tribunal was asked to make a finding that she had tweeted whilst at work on at least one occasion, in breach of the APS code and the Department’s social media guidelines.
In the course of the proceedings, the Tribunal noted the worker had been “a prolific tweeter” tweeting over 9,000 times. Despite this, she had been careful to avoid doing so during working hours on almost all occasions.
The decision is lengthy, with a detailed review of the APS code, the authorities on the implied constitutional freedom of political comment, and an employee’s duty of fidelity and loyalty.
In short, the Tribunal considered the alternative positions where the worker’s comments were taken to be open (ie attributable to her) and where they were anonymous (using a pseudonym and not revealing herself to be an employee of the Department).
If the comments were open and attributable to a public servant, the Tribunal found they would have breached her duty to the Department and have fallen outside the constitutional protection for political comment.
If the comments were taken to have been anonymous, they were not ostensibly made by a public servant. Such comments therefore could not reasonably be used to draw conclusions about the professionalism or impartiality of the public service.
The worker had clearly intended that her tweets should not be attributable to her, and had taken care not to use information that could only have been in the possession of a Department employee.
Notwithstanding that a Department investigation revealed her to be the author of the tweets, the Tribunal found they had been posted anonymously. Her injury was, accordingly, compensable.
In WA the Workers’ Compensation and Injury Management Act 1981 generally excludes stress claims where they arise from a worker’s ‘dismissal, retrenchment, demotion, discipline, transfer or redeployment’ (without the word ‘reasonable’ found in the Commonwealth Act). Her claim therefore may not have been successful in WA.
It is a timely reminder of the perils of social media. The worker lost her job, suffered a psychiatric condition, and spent over two years involved in litigation.
It is also timely for employers to ensure they have social media policies in place that specify the culpability of anonymous posts criticising their employer or fellow employees. Employers should also ensure that policies and procedures clauses in all contracts of employment, make clear that such policies, do not form part of the contract of employment and are viewed by the employer as a guideline only. A failure to do so, will ensure that an employer is bound by the contract of employment, thereby exposing it to claims of breach of contract, should they terminate an employee.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.