Immigration Department cleared to sack employee who breached social media policy: A warning for other employers

The Immigration Department has been granted permission by the Federal Circuits Court to dismiss an employee who regularly tweeted critical comments about immigration detention policies.

The case has significant ramifications for businesses and their own social media policies – particularly when it comes to taking action against workers who breach them.

The employee, Michaela Banerji, had set up a Twitter account under the username @LaLegale which did not reveal her name or job to her followers.

Banerji, a public affairs officer, was found to have tweeted comments which were highly critical of the government, Immigration Department spokesperson Sandi Logan and the immigration portfolio generally.

An investigation determined in October last year Banerji was responsible for the tweets.

The investigation recommended Banerji be dismissed as a result of two breaches of the Australian Public Service’s code of conduct, which states bureaucrats must not making extreme criticisms of politicians and their policies.

Following these recommendations of disciplinary action, Banerji took the matter to court, defending herself on the basis of the protected right to freedom of speech.

But Federal Court Judge Warwick Neville determined yesterday Australians had no “unfettered implied right of political expression” and it did not provide a licence to breach employment contracts.

“I do not see that Ms Banerji’s political comments… are constitutionally protected,” Neville stated in his judgement.

Banerji also accused Logan of “bullying, harassment and mobbing” and said the decision to take disciplinary action over the Twitter comments was retaliation against her complaint.

Banerji had applied for a stay of proceedings, but this was not granted and the judge found the case to be “premature”, as Benerji has not yet been dismissed.

SmartCompany contacted the Immigration Department, but it gave no comment.

Neville recommended both sides enter mediation and said Banerji could still request to review the department’s recommendation to terminate her employment.

Pod Legal solicitor director Jamie White told SmartCompany this case is another example of the blurred lines between an employee’s private use of social media and social media in the workplace.

“There has been a trail of cases where such uncertainty has led to employment dismissals, or in the case of not having a social media policy or code of conduct in place, reinstatement of employment,” he says.

Jamie White says when an employer wants to be able to control the use of social media in the workplace, they must have a social media policy, particularly if they want to be in a position to lawfully terminate employment as a breach of policy.

“Employers are more so than ever attempting to govern how an employee uses social media in the workplace and to some degree, outside the workplace also.

“Employers must have social media policies in place and further, train to those policies. This has been reinforced by recent decisions of the Fair Work Commissioner,” he says.


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