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Silly stuff that gets you sacked: bagging your boss on Twitter

20 August 2013

A court has paved the way for a public servant who criticised the government on Twitter to be sacked, even though she did not reveal her name or her job to her readers.

In a decision which may curtail public and private sector workers' use of social media, a Federal Circuit Court Judge rejected the employee's application for a stay on her dismissal.

The case is linked to one of the government's most frequent official tweeters, a Departmental spokesman who heads the communications team in which the employee worked.

The employee had accused her boss, the communications chief, of bullying her, and argued that a departmental decision to discipline her over her Twitter comments was taken in retaliation for her complaint.

It is claimed that these tweets breach the Department's Social Media Guidelines and the Australian Public Service's Code of Conduct, as well as her contract of employment. The case is somewhat muddied by other allegations, such as her claim of victimisation against the Department and its claim that she was engaged in outside employment without proper permission.

Her application for an injunction on her sacking was decided last week after a lengthy investigation of whether the Constitution protected public servants' freedom of speech.

The Judge found Australians had no ''unfettered implied right (or freedom) of political expression''. He also declined to grant a stay on the dismissal, noting she had not yet been sacked.

The employee, a public affairs officer, used microblogging website Twitter under an assumed name. She had more than 700 ''followers'', or readers, when her department investigated her comments.

She regularly posted critical tweets about Australia's immigration detention policies, the security company that works at detention centres, and government and opposition frontbenchers.

The employee initially denied the Twitter account was hers, but in October last year an investigator wrote she was ''satisfied that, on the balance of probabilities, the evidence provided, although circumstantial, does support the conclusion that the... account is yours''.

The investigator found the comments were ''highly critical of the government, the minister, the immigration portfolio and ... (her boss)''.

In one exchange on Twitter, her boss had praised an African refugee, who graduated as a doctor in Melbourne.

The employee replied on Twitter: ''Perhaps (the doctor) can now make up for deaths and agonies of unlawful, immoral and destructive [immigration detention centres]. Different kind of 'refugee camps'.''

The investigator recommended the employee be dismissed as a result of the two breaches of the Australian Public Service's code of conduct, noting bureaucrats must avoid making ''harsh or extreme'' criticisms of politicians or their policies.

However, the employee, who has a law degree and represented herself in the case, argued none of her tweets were ''offensive or damaging to individual persons, but instead, they are expressions of political opinion, to which all Australian citizens have a constitutionally implied right''.

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''It is evident that they are a simple expression of political opinion, made in [my] own time away from work.''

She said any finding of misconduct against a public servant ''for expressing a political opinion contravenes the implied constitutional freedom of political communication''.

Australia's Constitution does not explicitly guarantee freedom of speech, nor does Australia have a Bill of Rights. An implied freedom to speak out in the guise of "political communication" was uncovered by the High Court in two 1992 cases, Australian Capital Television v Commonwealth and Nationwide News v Wills. Majority and minority judges battled over the existence, scope, operation and source of the freedom until the unanimous decision in Lange v ABC in 1997.

However, the Judge said the High Court had found that citizens' implied rights of political expression were limited.

''Further, even if there be a constitutional right of the kind for which [the employee] contends, it does not provide a licence ... to breach a contract of employment,'' the judge said.

He pointed out the employee was still able to request a review of the department's recommendation to sack her, and encouraged both sides to enter mediation.

The Department would not comment on what action it would take against the employee, citing privacy concerns.

Theoretically, public servants have the same political freedoms as other citizens, though the Public Service Commission warns them to avoid making comments that may raise questions about their impartiality.

The commission advises staff to uphold the service's 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 ... be recognised as such''.

It does not seem that section 351 of the Fair Work Act explicitly arose in this case, which renders it unlawful for an employer to take adverse action against an employee on the basis of their political opinion. An exception to s. 351 is that a particular position may have relevant inherent requirements, in this case contained in the Public Service Commission's Code of Conduct.

iHR Australia advises employers to have a clear and well communicated social media policy as part of HR policies and procedures that document your organisation's expectations, standards and responsibilities. It is also important to ensure managers are trained to handle inappropriate behaviour should they become aware of it. HR consulting firms can offer advice and guidance on creating and updating policies and procedures.

As in the above case, a workplace investigation may be required to determine if an employee has breached company policy or behaved inappropriately; specialist HR consulting firms can provide this service.

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