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Public Servant Loses Landmark Free Speech Case in the High Court

When can an employer fire an employee over what they put on social media?  This case gives us some insights into where the Court draws the line.

Facts

Ms Michaela Banerji alleged that her employment with the Department of Immigration and Boarder Protection had been unlawfully terminated in 2013. Ms Banerji claims that her employment ended as a result of Tweets she had sent expressing opinions that were critical of the Australian Government’s immigration policies.

Ms Banerji’s employer argued that an internal investigation had been conducted and found that her Tweets breached the Australian Public Service Code of Conduct. Accordingly, Mr Banerji’s employer terminated her employment.

The Law

There is an implied right in the Constitution that each person is entitled to freedom of political communication. The question in this case was whether the employer’s Code of Conduct breached the implied right contained in the Constitution resulting in Ms Banerji’s termination being unlawful.

The Code of Conduct required:

  1. An employee take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s employment; and
  2. An employee must uphold the integrity and good reputation of the employee’s agency.

Ms Banerji argued that because the Tweets were sent via her personal device and did not disclose that she was a public service employee, the Tweets did not bring the Government into disrepute.

Decision

The Administrative Appeals Tribunal initially held that Ms Banerji’s termination restricted her implied right to freedom of political communication.

The decision was recently appealed to the High Court who had to determine whether:

  1. The employer’s Code of Conduct was enforceable or a breach of the right to freedom of political information; and
  2. Whether (in light of point 1 above) Ms Banerji’s employment was unlawfully terminated.

The High Court unanimously held that the Code of Conduct was proportionate to its purpose of maintaining an apolitical public service. Given this, the High Court held that Ms Banerji’s employment had been legally terminated and she was not entitled to any compensation as a result.

This case may be relevant for Mr Israel Folau’s Federal Court proceeding which is expected to be heard later this year.

Posted by Taurus Legal Management

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