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Law firms among those to feel implications of High Court appeal
An appeal being heard in the High Court of Australia today is set to have major implications for every employee and employer in Australia, including law firms, according to the practice head of workplace law and culture at Bartier Perry.
Emma Musgrave
James Mattson, practice head of the workplace law and culture team at Bartier Perry, has flagged that this morning will see the commencement of an appeal which could influence how far employers can go when firing employees for comments they make on social media in their own time.
It stems following Ms Banerji’s dismissal by the then Department of Immigration and Border Protection, after they uncovered she was behind an anonymous Twitter account that was frequently highly critical of her employer.
“All but one of the 9,000 plus anonymous tweets she sent out were made outside of the office and on her own phone. The department said employees had complained about the tweets,” Mr Mattson explained.
“... At the heart of this appeal could be two crucial questions. If an employee posts anonymous comments on social media, can an employer who later finds out the identity of the employee, use these posts as grounds for dismissal? Secondly, is an employment contract or policy that requires a worker to behave ‘at all times’, in regard to their employer’s interests, appropriate and legitimate?” he questioned.
“What previous hearings on this topic have grappled with is the increasingly blurred boundaries between your work and personal time.
“So, to what extent does an employer have a right to police your thoughts and opinions outside of the office? Is there any distinction between an anonymous comment an employee posts online as opposed to putting their name to it?”
Mr Mattson acknowledged that while under the law employees and employers have important obligations to ensure a safe workplace, he questioned on whether that then entitled an employer to question an employee’s private activities when it affects reputation and the wellbeing of others.
He noted that while the appeal outcome would have a direct bearing on the public service, “given the often politicised nature of Ms Banerji’s tweets”, its implications could ripple out into all workplaces across Australia.
“The High Court will be asked to weigh up the obligation on an employee to discharge their contractual duty of loyalty and fidelity and their statutory obligations, balanced against any so-called ‘freedom of speech’. Where will that balance be found?”
Emma Musgrave
Emma Musgrave (née Ryan) is the managing editor, professional services at Momentum Media.
Emma has worked for Momentum Media since 2015, including five years spent as the editor of the company's legal brand - Lawyers Weekly. Throughout her time at Momentum, she has been responsible for breaking some of the biggest stories in corporate Australia. In addition, she has produced exclusive multimedia and event content related to the company's respective brands and audiences.
Prior to joining Momentum Media, Emma worked in breakfast radio, delivering news to the Central West region of NSW, before taking on a radio journalist role at Southern Cross Austereo, based in Townsville, North Queensland.
She holds a Bachelor of Communications (Journalism) degree from Charles Sturt University.
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