The Administrative Appeals Tribunal (AAT) has recently found that the dismissal of a public servant because her anonymous tweets which were critical of government policy, failed the “reasonable administrative action” test and encroached upon the employee’s constitutional rights.

Background

Using the Twitter handle “La Legale“, the employee, who was from the Department of Immigration and Citizenship, posted a large number of tweets making strong criticism of the then government.

Following a complaint, the Department launched an investigation. The investigation found that the tweets breached the employee’s contract of employment and the APS Code of Conduct. The findings also included that the employee had breached the Department’s Guidelines on the Use of Social Media, and because the tweets contained “harsh or extreme” criticism of the government, it created the perception that the employee could not work impartially, which was a requirement under the APS Values.

Based on the findings, the employee was asked why she should not be dismissed from her employment.

The employee sought a stay on her dismissal, arguing that her tweets were simply an expression of her personal political opinions. She also argued that her tweets were in her own time, using her own equipment, and did not identify her as a public servant.

The employee further argued that the tweets were protected by the constitutional right to freedom of political expression/communication.

The Court did not grant the employee’s application for a stay on dismissal, finding that there was no unfettered right (or freedom) of political expression/communication.

The Court also held that the employee was bound by the terms of her employment contract, that the APS Code of Conduct acted to constrain her actions and she was subject to the social media guidelines.

The Department then proceeded to terminate the employee’s employment.

After initially contesting termination of her employment, the employee reached an out of court settlement with the Department in 2014, resolving a case for unlawful termination.

The Workers’ Compensation Claim

The employee lodged a claim for workers’ compensation on 18 October 2013. The date of injury was given as 13 September 2013, which was the date the employee was advised that her employment was to be terminated. The effective date of termination was 27 September 2013.

The claim for workers’ compensation was declined in 2014. The decision to deny compensation was confirmed on review later in 2014.

The employee then took the workers’ compensation case to the AAT.

At the hearing before the AAT, Comcare argued that the termination was “a reasonable administrative action undertaken in a reasonable manner” and so it was not liable to pay compensation.

The AAT disagreed, finding the employee’s illness, an adjustment disorder, characterised by depression and anxiety, was an aggravation of an underlying psychological condition which was caused by her dismissal.

The AAT also found that the termination trespassed on the implied freedom of political communication and therefore the act of termination was unlawful. Accordingly, it could not be “reasonable administrative action“.

The AAT also noted that anonymous tweets also provided a measure of protection to the employee finding that: “A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service,“

Lessons from the decision

Whilst the decision related to a claim for workers compensation and not a challenge to termination of employment, it is certainly a significant decision relating to the ability of an employer to take action in relation to employee’s activities on social media platforms and the ability to regulate the conduct of employees outside of work.

The decision also suggests that anonymous posts or the use of a pseudonym allows greater freedom for employees to make comments which critical of their employer.

The decision also illustrates that the law concerning constitutional freedoms in a work-related context is far from settled.