Personal behaviour vs employment

[thesoretoothsayer]

A public servant tweeting critically of govt. policy on her own device and outside of work hours is found to have breached the public service code of conduct.

https://www.abc.net.au/news/2019-08-07/high-court-free-speech-public-service--banerji-decision/11377990

Peak capitalism has been achieved folks. Everything you say, everything you do, at work or outside of work, should be for the good of your employer.

[David]

It (and the broader public service norms it affirms) is a total disgrace, and goes to show how little this country values free speech. We need a bill of rights now.

[K]

[Pies4shaw]

Link to the reasons for judgment: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2019/23.html

[K]

"Australian Human Rights Commission appearing as amicus curiae, limited to its written submissions".

I'd like to see those submissions...


"There were more than 9,000 such tweets, at least one of which was broadcast during the respondent's working hours..."

Hmm...


"On 7 March 2012, the Workplace Relations and Conduct Section of the Department ("the WRCS") received a complaint from one of its employees, ... After reviewing the complaint, the Director, WRCS determined that the complaint did not contain sufficient material to proceed with a formal APS Code of Conduct investigation, and advised the complainant of his determination[9].
On 9 May 2012, the WRCS received a second, more detailed complaint regarding the respondent's conduct[10]. On the basis of that complaint, on or around 15 May 2012, the Director determined to initiate an investigation..."

Hmm...


"During that meeting, the respondent admitted to having broadcast tweets under the handle @LaLegale in which she criticised Government immigration policy and her direct departmental supervisor, and, on the same day, the respondent sent an email to the complainant offering an "unreserved" apology[18]."

Maybe she should not have admitted anything...

[thesoretoothsayer]

[K]

Article in The Mandarin:

https://www.themandarin.com.au/113306-nope-freedom-of-political-communication-does-not-override-the-public-service-rules/

Earlier article:

https://www.themandarin.com.au/96071-banerji-and-comcare-compensation-the-snowball-that-will-start-an-avalanche/

[K]

Her former boss has posted about it:

https://twitter.com/SandiHLogan/status/1159022808799666176

[stui magpie]

[K]

I think the High Court overturned the Tribunal's decision, which was in her favour. It was the gov. insurer, Comcare, that appealed to the High Court.

[stui magpie]

Ah, OK I missed that. She applied for workers compensation under the federal comp act, it was denied, she went to the AAT, they overturned the decision so Comcare took it to the high court.

The AAT is a joke.

Other than that, on legal argument in a real jurisdiction, I stand by my post.

[K]

Fairfax's article:

Former public servant loses free speech case over anonymous tweets

https://www.theage.com.au/politics/federal/former-public-servant-michaela-banerji-loses-high-court-free-speech-case-20190807-p52enu.html

[Wokko]

Weird for libertarians like me to be defending lefty public servants but here we are. Strange world we're in.

[K]

ABC:

High Court free speech ruling may not affect Folau, but could impact millions of public servants

https://www.abc.net.au/news/2019-08-08/high-court-free-speech-banerji-folau-public-service/11392974

"But legal experts say the cases are very different.

Folau's case, filed in the Federal Circuit Court last week, argues he was discriminated against for his religious beliefs when Rugby Australia tore up his contract ...

Folau is invoking the Fair Work Act to argue he had faced discrimination.

However, Ms Banerji went straight to the constitution to argue her freedom of political communication was being trampled on by the Government.

Kieran Pender, a legal analyst and visiting fellow at the Australian National University, said the High Court only answered the constitutional question and did not make a ruling that would apply to the Fair Work Act.

"If I were Rugby Australia I would read this case and be heartened, I wouldn't be sending it to Israel Folau's solicitors and saying, 'ha, look at that'; it's not directly relevant, but I don't think that it would dishearten Rugby Australia either."

Employment lawyer James Mattson said while the court did not deal with legal issues relevant to the Folau case, it did demonstrate the court had little sympathy for people invoking personal belief as a reason to flout workplace rules.

"The message behind the decision of the High Court is that you can't ignore your other duties and obligations you have as an employee to your employer," he said.

Mr Pender said there were millions of Australians who were employed by the Government, and the court's decision has the potential to impact each of them.
...

The judges of the High Court stressed that while the constitution offers an implied right to free political communication, that is not the same as a personal guarantee for free speech.

"Even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole," the court's judgement said."

[K]

Josh Bornstein (an employment lawyer & writer):

https://www.abc.net.au/news/2019-08-07/israel-folau-should-be-able-to-go-back-to-work/11386826

"Under the Fair Work Act, it is illegal to sack an employee by reason of the employee's religion. There is scant case law about what this protection means.

Folau's is a test case... If the court finds in Folau's favour, the furious debate about Folau's contract will have been for nought. Employment contracts and codes of conduct can't subvert anti-discrimination laws.
...

While companies proudly trumpet their values, there's another standard clause in their contracts advising that while the policies, codes and values are binding on the employee, they do not bind the company. These provisions ensure there are no consequences for the company for breaching these obligations. The asymmetry is a stark expression of the employer's absolute power.
...

Tribalism trumps principle

Why do those who so loudly invoke principle so easily dispense with it? The answer is tribalism.

In the Folau case, many progressives instinctively disapprove of Folau's views and want his employer to mete out severe punishment. ...

But those cheering on the loss of Folau's livelihood and career have undermined the cause of countless other employees who espouse controversial progressive views and suffer the same fate.

Employment contracts and the dark arts of brand management are being selectively deployed to suppress participation in the democratic process. There should be no exception to the universality of human rights discourse for Folau."