To what extent can an employer use workplace policies to regulate what their employees say outside work? The question has become very topical, with the high profile court cases of Israel Folau and Michaela Banerji both making headlines last year. The question has arisen again, this time in a recent decision by the Full Federal Court in a case involving Dr Gary Rumble, a constitutional lawyer, and his former employer, HWL Ebsworth Lawyers.

The question is a fraught one, and brings together questions of contract, free speech, the extent to which employers can regulate out of work conduct, and in Folau’s case, religious freedom. Whilst this is very much a developing area of law, there are nonetheless important lessons employers and employees can learn from these three cases.

Unlawful dismissal? Workplace media policies and the law

Employers commonly have policies regulating what employees can say on social media, online or to the press. Policies allow employers to set the expectations that they have for their employees. If an employee breaches an employer’s policy, the employee may be in breach of their contractual obligations to their employer. In the three cases, the employers in question determined that their employees had breached their policies in so serious a manner as to warrant dismissal:

• In Dr Rumble’s case, by criticising the Department of Defence, a client of HWL Ebsworth, on Channel 7’s Weekend Sunrise program, The Sydney Morning Herald and The Canberra Times. The Department of Defence had engaged HWL Ebsworth – and Dr Rumble – to prepare a review of the Department, and Dr Rumble was so frustrated that the Government was not taking his advice that he went public with his criticisms.
• In Michaela Banerji’s case, by making numerous anonymous tweets and blog posts criticising her employer, the Department of Immigration.
• In Israel Folau’s case, by tweeting a paraphrase of a biblical passage widely considered offensive to people in same-sex relationships.

In both the Rumble and Banerji cases, the employers won. The Folau case settled out of court, meaning that we do not know how a court would deal with a situation like his, were it to arise again.

The legal claims by the three employees were different, but the basic argument was that the employer had dismissed the employee for an illegal reason, because the actions of the employee were lawful and protected:

• In the Rumble and Banerji cases, that the employee has a right to express their political opinions, and
• In Folau’s case, that he had the right to express his religious views.

Legally, the Banerji case is only relevant to public servants, but it does highlight that Australia does not have a constitutional right to ‘free speech’ as such, and Parliament can regulate speech provided it has a legitimate end. Maintaining an impartial public service, the High Court said, is a legitimate end for which the Parliament and government could regulate the speech of government employees through the Australian Public Service Code of Conduct.

Is it unlawful to prevent employee’s public comments?

The Rumble case, on the other hand, provides an example that may have broader practical implications. In this case, Justice Perram at first instance found that HWL Ebsworth had not dismissed Dr Rumble for expressing a political opinion. Rather, the firm had dismissed him for publically commenting on a client of the firm, without permission, and it was only incidental that the client happened to be the Federal Government. Justice Perram found that, as to Dr Rumble’s political views, ‘the Firm was at least indifferent and quite possibly in fact sympathetic’ with those views. The decision was upheld on appeal. The takeaway is that it was not unlawful for HWL Ebsworth to prevent its employees publically commenting on clients of the firm. It was incidental that the views were political because of the nature of the client however this ultimately did not make dismissing Dr Rumble based on the workplace policy unlawful.

To what extent can views be regulated?

In Folau’s case, the connection between his social media post and his employment was weaker than in the Rumble and Banerji cases, though Rugby Australia argued that Folau’s comments could have had a serious impact on it, with sponsors threatening to withdraw funding. Rugby Australia no doubt had a commercial interest in having its employees avoid making controversial comments, but it is unclear to what extent such considerations could allow them to regulate the content of their employees’ social media comments, particularly if those comments were religious or political in nature. The Federal Government’s proposed Religious Discrimination Bill may provide a legislative answer to that question, in favour of the employee, but in the meantime the law is uncertain. The case highlights the difficulties that arise when employees promote personal views that an employer finds problematic.

Both the Rumble and Banerji cases show that the courts are willing to uphold disciplinary action taken by employers against employees who breach workplace policies aimed at protecting the employer’s reputation.

There is therefore value for an employer to have workplace policies in place that set out clearly an employer’s expectations of their employees’ out of work conduct on social media and other platforms. Nonetheless, there are limits to an employer’s ability to hold employees accountable for what they say and do outside work, and special care needs to be taken if the comments made by an employee are religious or political in nature. The border between work life and personal life is less distinct than it was in the past, but it still exists.

How can Sharrock Pitman Legal assist?

If you require assistance or advice regarding workplace social media policies, our employment team would be happy to assist you. Contact us on (03) 9560 2922 or alternatively fill in the contact form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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