The question of how far employer policies can apply to the personal lives of employees is age old. It is one that has become relevant again amid the climate of social and political uncertainty facilitated by COVID-19. This question creates, and is likely to keep creating, conflict between employers and employees. A recent example of this is seen in the court action brought against the Australian Bureau of Statistics (ABS) by an ex-employee, whose employment was terminated after she expressed a political opinion on LinkedIn.
In this case, the then employee, a casual Census collector, was expecting to work from July to October 2021. However, she was allegedly dismissed in September 2021 when somebody reported a post by the employee expressing her political opinion on LinkedIn to her employer. Only in August 2021 had the ABS reminded the Census collector to remain apolitical whilst employed with them, citing that this was necessary to prevent damage to public confidence. Further to this effect, the employer explained the relevant terms of the Australian Public Service (APS) Code of Conduct, which applied to the employment. It sets out that public servants "have a right to personal and political expression on social media" but that it must be balanced with the "obligations of APS employment, and the need to be seen as trusted and impartial public servants".
In determining whether a political expression would damage public confidence, the ABS specific that it would depend on the individual circumstances of a social media post, including the seniority of the relevant employee, the relationship between the social media post and the employee's activities at work, and how controversial the employee's political view is.
As a result of her termination, the ex-employee has sought a public apology from the ABS, acknowledgement via LinkedIn (which has temporarily restricted the ex-employees account) that the ABS fired a casual employee for expressing their own political opinion, legal costs, wages lost up to October, and the name and report of the individual who reported her LinkedIn post to the ABS.
In a previous case, the High Court rejected the unlawful dismissal claim of an employee of the Department of Immigration and Border Protection (DIBP), who was terminated for breaching the APS Code of Conduct. In this case, the employee had posted anonymous tweets criticising the policies and management of her employer. It seems likely that this authoritative decision will have bearing on the present matter and whether or not the Census collector is found to have been unlawfully terminated by the ABS.
While employers do not have the right to prohibit certain political opinions, they can implement policies that protect them from the various ways in which different political or other sensitive opinions can be expressed, such as we have seen in the above case. Depending on the restrictiveness of the employer policy, for employees, this may mean having to weigh up between expressing your honest opinion on a public platform and keeping your job. For employers, having a social media policy in place, for example, can simply provide a safety net for the business, that enables lawful and reasonable disciplinary action to be taken against employees who breach that policy. In terms of social media posting, for example, this can protect from misrepresentation of the employer, defamatory conduct, or breach of other employee's personal information, just to name a few examples.
Employers who do not have effective policies in place to protect from employee conduct that may harm the business may not have lawful means to terminate employment or otherwise undertake disciplinary action where an employee engages in inappropriate conduct on social media. Where an employer does unlawfully reprimand an employee for conduct which they were not prohibited from engaging in, the employer may expose themselves to a general protections (adverse action) claim in the Fair Work Commission, or even an anti-discrimination complaint with Anti-Discrimination NSW.
Given that we are presently in a particularly fluctuant regulatory state as we emerge out of lockdown, it is crucial that employers place themselves in the best possible position to protect from potentially harmful conduct by employees, whether physically or electronically within the public domain.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
