The High Court ‘s landmark ruling in Comcare v Banerji, last week affirmed that Comcare was justified in dismissing the employee for breaching the Australian Public Service (APS) code of conduct. The Code required employees to uphold APS values, including the obligation to maintain an apolitical public service at all times.
While employed by the department Ms Banerji had posted a series of tweets under a pseudonym criticising the Federal Government and its immigration policies. The Court rejected an argument from Ms Banerji that because she had not explicitly identified herself in the tweets as a department employee she was immune from her contractual and statutory obligations. It also rejected a contention that the tweets constituted an exercise of constitutionally-protected free speech.
Although the case was strictly-speaking concerned with employment by the Federal Government, it has implications for private sector employment as well. Many employees have committed themselves to principles of diversity and inclusion in the workplace. Ostensibly private acts which violate or undermine these precepts and can be connected to the employment relationship will generally constitute workplace misconduct.
On the other side of the coin, employers are being required to broaden the duty of care to employees. This is particularly so in matters of bullying and harassment. In some American states and in the UK there have been moves to extend the obligations of employers to eliminate sexual harassment. The Australian Human Rights Commission, in its report on workplace sexual harassment due out this year is likely to recommend the same. Employers who want to stay ahead need to start to investigate implementing strategies to counteract sexual harassment.
Symmetra will be canvassing a number of relevant issues pertaining to sexual harassment as a cultural phenomenon at the next session of Symmetra Connect.