Australian Public Service (APS) employees have particular responsibilities under the Public Service Act 1999 (the Act), to not make public comment that may lead a reasonable person to conclude that they cannot serve the government impartially and professionally.
Ms Banerji, an APS employee, made anonymous tweets posted via private devices, mostly outside of work hours, which were critical of the Australian Government, its immigration policies, and its treatment of immigration detainees. Upon discovery of these posts, her employment with the Department of Immigration and Citizenships (the Department) was terminated in 2013 following a disciplinary process.
Ms Banerji claimed that the dismissal aggravated a psychological condition and made a compensation claim to Comcare. The claim was initially rejected by Comcare on the basis that the Department’s actions were ‘reasonable’. However, on appeal, the Administrative Appeals Tribunal held that the dismissal infringed Ms Banerji’s implied freedom of political communication and was not ‘reasonable’.
On Wednesday, the High Court upheld Comcare’s decision, finding that the Act “did not impose an unjustified burden on the implied freedom of political communication”.
The High Court emphasised the importance that there be “confidence in the ability of the APS to provide high quality, impartial, professional advice” and “faithfully and professionally implement accepted government policy, irrespective of APS employees’ individual personal political beliefs and predilections”.
Ms Banerji argued that the anonymity of the communications protected it from the Act’s scope, but the High Court noted that anonymous communications are also at “risk of ceasing to be anonymous, and thereby damaging the integrity and good reputation of the APS as an apolitical and professional public service.”
It should be noted that Ms Banerji did not raise the Fair Work Act’s anti-discrimination protections relating to political opinion. While this decision is clearly significant for APS employees covered by the Public Service Act 1999, Courts are yet to determine whether private sector employees will be similarly restrained from publicly sharing their political (or perhaps religious) opinions online.
Lessons for employers
Employers should not consider this decision a ‘free pass’ to dismiss employees for undesirable online conduct. Employers should ensure that they have in place appropriate policies and protections under employment contracts regarding employee use of social media (including on personal devices in the employee’s own time), and only take disciplinary action when the employee’s social media has a clear and damaging impact on the employment relationship.
Case Study: Comcare v Banerji  HCA 23, C12/2018