In a landmark case on whether a public servant's use of social media can be a valid reason for terminating their employment, the High Court has unanimously upheld restrictions on a public servant's ability to make public comment where it may damage the integrity and good reputation of the public service.
In doing so, the Court has emphasised the importance of an apolitical and professional public service that will faithfully implement accepted government policy, irrespective of employees' personal political beliefs.
In Comcare v Michaela Banerji [2019] HCA 23 (7 August 2019), a now former Department of Immigration employee Ms Michaela Banerji had an anonymous twitter account where she was highly critical of Government and Opposition immigration policies, members of Parliament and the Department of Immigration. After an investigation uncovered her identity, she was dismissed from her role for inappropriately using social media in contravention of the Public Service Act 1999 (Cth) (PS Act), the Australian Public Service (APS) Code of Conduct and APS Values.
Ms Banerji argued that the PS Act and APS Code of Conduct imposed an unjustified burden on the implied freedom of political communication under the Constitution.
The Court unanimously rejected this argument, emphasising that the implied freedom of political communication is not a personal right to free speech. The Court held that the restrictions placed on political communication by public servants under the PS Act were consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance and protection an apolitical public service.
However, the Court emphasised that any action taken in response to a breach of the PS Act or APS Code of Conduct must be proportionate to the nature and gravity of the employee's misconduct. Depending on the circumstances, this may range from a simple reprimand to the termination of a person's employment. In responding to a potential breach, an employer must act reasonably, provide procedural fairness and take into account the personal circumstances of the employee.
A summary of the Court's decision can be found here.
VGSO's Workplace Relations and Occupational Safety Branch has significant expertise and experience in advising employers on potential breaches of the Code of Conduct for Victorian Public Sector Employees and Victorian Public Sector Values. We also run training programs for human resources professionals in the public sector, including on the use of social media in the workplace.
VGSO's Constitution and Advice Team also has significant experience and expertise in dealing with the intersection between the implied freedom of political communication and state laws, including decision-making under those laws.
If you work in the public sector and require further information please contact us:
Workplace Relations team
Frances Anderson
Assistant Victorian Government Solicitor
Ronan O'Donnell
Solicitor, Workplace Relations and Occupational Safety
Constitution and Advice team
Alison O'Brien
Assistant Victorian Government Solicitor
Jessica Cleaver
Managing Principal Solicitor, Constitution and Advice team
Maya Narayan
Principal Solicitor, Constitution and Advice team
This blog was prepared with the assistance of Margie Brown, Law Graduate.
Updates on legal developments by the Victorian Government Solicitor's Office
Showing posts with label Dismissals Workplace Relations. Show all posts
Showing posts with label Dismissals Workplace Relations. Show all posts
Friday 9 August 2019
Friday 4 March 2016
Employee in a 'pickle' following employer's ‘commendable’ approach to dismissal
Effecting a fair dismissal is not impossible – a recent decision of the Fair Work Commission illustrates the importance of the ongoing management of unsatisfactory performance and a fair approach.
The facts Rooney v Pickles Auctions [2016] FWC 858 (9 February 2016)
Pickles Auctions dismissed an employee one afternoon after he arrived at work over one hour late that morning because he had slept through his alarm.
The employee had a history of habitual lateness without prior notification to his Supervisor and had received at least 6 formal warnings regarding his performance and conduct (including lateness).
There was a valid reason for dismissal
The FWC held that it should have come as no surprise to the employee that this occasion of late attendance might represent 'the straw that broke the camel's back'.
The employer had taken a commendable procedural approach
The employer’s ‘proper and just… and commendable’ approach included:
- providing the employee with an opportunity to respond to the particular circumstances of lateness on each occasion;
- convening a meeting with the employee to advise of the seriousness with which it was treating the matter and to inform the employee that his employment was in jeopardy;
- providing the employee ample opportunity to offer an explanation for his conduct or make out a defence;
- adjourning the meeting to take advice, consult with relevant personnel management staff and carefully consider the circumstances before arriving at the decision to terminate the employee's employment; and
- convening a further meeting with the employee to inform him that his employment was terminated and providing both verbal and written notice of the reason for dismissal.
Not every dismissal (perhaps particularly in the public sector) will be as straightforward as this one but, no matter how complex the situation, the focus should be on proactively managing each instance of unsatisfactory performance by notifying the employee and giving them an opportunity to respond on each occasion.
If you would like further advice in this area, please contact:
Assistant Victorian Government Solicitor
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