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Australia: Court Holds Public Servant Can Be Fired for Critical Tweets

(Aug. 16, 2013) It was reported on August 13, 2013, that a judge of the Australian Federal Circuit Court had dismissed an application by a public servant for a stay in her dismissal from her public affairs role at the Department of Immigration. The recommended dismissal, following an investigation conducted last year, had been due to a finding of two breaches of the Australian Public Service (APS) Code of Conduct: the applicant, Michaela Banerji, had continued to work in a second job beyond the period permitted by the Department and had criticized government policies using an anonymous Twitter account. (Markus Mannheim, Public Servant Loses Fight over Twitter Attack on Government, THE CANBERRA TIMES (Aug. 13, 2013).)

Under the Code of Conduct, which is set out in section 13 of the Public Service Act 1999, public servants must “at all times behave in a way that upholds: (a) the APS Values and APS Employment Principles; and (b) the integrity and good reputation of the employee’s Agency and the APS.” (Public Service Act 1999 (Cth), s 13(1), COMLAW.) The current guidelines issued by the Australian Public Service Commission in relation to the application of the Code of Conduct include general principles regarding APS employees making public comments in an unofficial capacity. The principles include that it is not appropriate for APS employees to make comments that are, or could be perceived to be, “so harsh or extreme in its criticism of the Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee’s capacity to work professionally, efficiently or impartially.” (Australian Public Service Commission, APS Values and Code of Conduct in Practice: A Guide to Official Conduct for APS Employees and Agency Heads, Sect 1.3: Managing Official Information.)

The guidelines include further principles relating to participating in online discussions. In terms of unofficial commenting online, the guidelines state that “APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym, and should bear in mind that even if they do not identify themselves online as an APS employee or an employee of their agency, they could nonetheless be recognised as such.” (Id.) Furthermore, the document states that “[s]ocial media websites are public forums. Inappropriate public comment on such sites could put employees at risk of breaching the Code of Conduct.” (Id.)

Banerji, who represented herself in the proceedings, argued that her tweets, which included criticism of the Government’s immigration detention policies and of members of Parliament, were expressions of political opinion, “to which all Australian citizens have a constitutionally implied right.” (Markus Mannheim, supra.) She also stated that she had previously laid a complaint about being bullied by her boss and argued that the Department’s decision to discipline her over the Twitter comments was in retaliation for that complaint. (Id.)

The court’s consideration of the injunction application involved a “lengthy investigation of whether the constitution protected public servants’ freedom of speech.” (Id.) The judge concluded that Banerji’s political comments were not constitutionally protected speech and that Australians had no “unfettered right (or freedom) of expression.” (Id.) Furthermore, he found that even if the type of constitutional right contended by Banerji existed, this would not provide a license to breach an employment contract. (Id.) He recommended that the parties enter mediation and noted that Banerji could still seek a review of the recommendation to terminate her employment. (Yolanda Redrup, Immigration Department Cleared to Sack Employee Who Breached Social Media Policy: A Warning for Other Employers, SMARTCOMPANY (Aug. 13, 2013).)