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Comcare v Banerji – Another Piece in the Codes of Conduct Puzzle

Stephen Booth, ||

We’ve posted articles before about the contract/policy/code of conduct issues, and employer’s rights to enforce them with respect to conduct outside work, in connection with the Israel Folau/Rugby Australia situation. Now, a High Court decision has cast a bit more light on this issue.

The case is Comcare v Banerji (7 August, 2019) about a public servant employed by the Australian Public Service (APS), working in the Department of Immigration, who tweeted anonymously, extensively (over 9,000 tweets), and in some tweets, intemperately, criticising Government and Opposition MPs and their policies on migration and asylum seeker detention, and the Department, and employees of the Department, including her own supervisor.

The case arose in a worker’s compensation context, as Ms Banerji made a claim relating to psychological injury arising from termination of her employment. Comcare rejected this claim, because it found that the Department’s actions were reasonable management action and taken in a reasonable manner. The question in the High Court was whether the APS Code of Conduct, which forbade active public criticism of government policy, and termination of Ms Banerji’s employment because of the tweets infringing the Code, were lawful or not. Ms Banerji argued that enforcement of the Code in this way infringed the right to freedom of political communication which is implied into the Constitution. If the termination was unlawful, then it could not be “reasonable management action.”

The High Court rejected reliance on the implied freedom of political communication, because that freedom concerns systemic issues (governments doing things which put an unjustified burden on free political communication as a whole) rather than being a personal right to be able to say whatever you like in a political context.

From an employment law point of view, the interesting thing is that the High Court judges did not find anything wrong with an employer (the Public Service in this case) enforcing the Code. On the contrary, the Court took the firm view that it was open to the APS to adopt and uphold a code of conduct, where breach of the code will have repercussions for the employer – even where, as in Ms Banerji’s case, the conduct was anonymous, because anonymity is always at risk of being lost, and indeed the Code said as much. The Code was framed in terms of employees upholding the integrity and good reputation of the APS, and not impairing their ability or perceived ability to act professionally, efficiently and impartially, and not disrupting the workplace by unreasonable or harsh criticism, and the Court found that was ample justification for the Code’s requirements.

While the considerations applying to private employers may differ in emphasis from those applying to the APS and public servants, this decision implicitly supports taking the same approach with employers other than the APS, where policies and Codes of Conduct apply as reasonable and lawful directions, and the employer can point to detrimental consequences to the employer arising from employee out-of-work conduct in breach of the policy or code. The decision in Comcare v Banerji provides support for the position of Rugby Australia with respect to Israel Folau’s tweets, and for employers generally seeking to protect their reputation from being undermined by employee conduct.

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