Is administrative action ‘reasonable’ just because you have acted in accordance with your own policies and procedures? Not necessarily

20 August 2019

The Worker’s claim for compensation was rejected by the Employer on the basis that her adjustment disorder resulted from reasonable administrative action, following the termination of her employment in accordance with the Employer’s policies.

The High Court looked behind the Employer’s policies to assess whether they imposed an unjustified burden on the implied freedom of political communication and, as a result, were not reasonable.

In issue

  • Whether the employer’s code of conduct imposed an unjustified burden on the implied freedom of political communication.

The background

At the time of the termination of her employment, the Worker was employed by the Department of Immigration and Citizenship. Throughout her employment, the Worker broadcasted tweets using an anonymous Twitter handle. There were over 9000 tweets, at least one was posted during work hours, and a number criticised her Employer, other employees, Government and Opposition policies and members.

Following an investigation which revealed that the Worker was behind these tweets, the Employer terminated her employment on the basis that the Worker’s actions breached the Australian Public Service (APS) Code of Conduct.

The Public Service Act 1999 (The PS Act) set out the code which, relevantly, required employees to uphold the values, integrity and good reputation of the APS and avoid conflicts of interest. The values (summarised) include being apolitical, performing its functions in an impartial manner, delivering services fairly, impartially and being sensitive to the diversity of the Australian public. The PS Act enabled the termination of employment (amongst other action) where an APS employee was found to have breached the code.

The Worker made a claim for compensation for an adjustment disorder arising out of the events leading to and including the termination of her employment. The Employer rejected the claim on the basis that the termination of the employment was reasonable administrative action taken in a reasonable manner in accordance with s5A(1), Safety, Rehabilitation and Compensation Act 1988 (Cth).

The Worker sought a review of that decision on the basis that the termination of employment fell outside of the reasonable administrative action provision, as a result of the implied freedom of political communication. There was no suggestion by the Worker that the Employer’s actions were otherwise unreasonable.

The Tribunal found in favour of the Worker, determining that the use of the code to terminate the Worker’s employment impermissibly trespassed upon the Worker’s implied freedom of political communication.

The Employer appealed that decision to the High Court which set aside the Tribunal’s decision because the Tribunal did not assess whether The PS Act resulted in a material unjustified effect on political communication as a whole (as there may only be a trespass if The PS Act has this effect).

Before the High Court, the Worker contended:

  • The relevant provisions of The PS Act did not apply to anonymous communications (i.e. communications where no immediate connection to the APS employee is revealed); or
  • If The PS Act did apply to anonymous communications, they imposed an unjustified burden on the implied freedom of political communication and were for that reason invalid; or
  • The decision to terminate the Worker’s employment was vitiated by the Employer’s failure explicitly to take into account the effect of the implied freedom.

The High Court’s decision

The Court found in favour of the Employer, upholding its decision to reject the claim.

The Worker’s first contention was rejected because there was no reason to suggest that anonymous communications do not risk the integrity and good reputation of the APS (in accordance with the code). Further (and as pointed out in the APS guidelines) at some point the identity of an anonymous tweeter and their employment is likely to be revealed. At which point the integrity of the APS will certainly be called into question.

The remaining two contentions were dismissed as it was determined that the burden imposed by The PS Act was lawful, being for legitimate purposes which were suitable and necessary to uphold a system of representative and responsible government in Australia.

It was found there was no unjustified effect on political communication as a whole. The PS Act only applied to APS employees.

The decision to terminate a Worker’s employment was a proportionate response to the need to uphold the integrity and reputation of the APS. In reaching this conclusion the Court noted there were disciplinary penalties available to the Employer other than termination. Provided that the penalty was reasonably determined and proportionate to the nature and gravity of the breach, and the personal circumstance of the Worker, there is no infringement on implied freedom. However even if the Employer imposed an excessive penalty on the Worker, whilst that might not be reasonable, it is also unlikely to be a trespass to the freedom of political communication.

Implications for you

The High Court’s decision is primarily focused on the freedom of political communication. However there are some take-home points for employers and insurers from a workers’ compensation perspective. The first is that an employer’s own policies and procedures can be subject to challenge. Whilst not a common occurrence, this should be in the back of your mind when running an administrative action argument. Otherwise, keep track of your social media trolls and appoint good investigators to provide substantive evidence in support of any related disciplinary actions.

Comcare v Banerji [2019] HCA 23

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