Public servant sacked for criticising refugee policy on Twitter wins workers compensation case

A FORMER public servant who slammed refugee policy under a secret Twitter handle has won a major legal victory against the government.

A FORMER public servant who was sacked for tweeting comments critical of Australia’s refugee policy has won a compensation case for post-traumatic stress disorder after a tribunal ruled the termination breached her “implied freedom of political communication”.

Michaela Banerji, a “prolific tweeter” under the handle @LaLegale, was sacked by the Department of Immigration and Citizenship in 2013 for breaching the Australian Public Service Code of Conduct over a series of tweets criticising the government, its refugee policy, the minister and her own supervisor, communications manager Sandi Logan.

“In 1942 the French Vichy government traded Jews. In 2011 the Australian Gillard government purports to trade asylum seekers,” she wrote in one tweet criticising the proposed Malaysia “people swap”.

“Offshore processing is unlawful,” she wrote in another tweet. “Substance: asylum. Process: rule of law. Result: onshore processing #nodetention”

In 2012, Mr Logan tweeted, “Melbourne Uni’s first African refugee doctor to graduate in faculty’s 150th year. Read inspiring story of Garang Dut ...”

In response, Ms Banerji wrote, “Perhaps. Dut can now make up for deaths and agonies of unlawful, immoral and destructive IDCs. Different kind of ‘refugee camps’.”

After being dobbed in by a colleague, Ms Banerji went through a lengthy disciplinary process. “Most of my tweets, except one that was in response to a DIAC tweet that was made in response to extreme provocation by my manager, were done in my own time and not during working hours,” she said in a submission arguing to keep her job.

The department ultimately concluded that she had breached the Code of Conduct.

“APS employees must still uphold the APS Values and Code of Conduct even when material is posted anonymously, or using an ‘alias’ or pseudonym,” she was told in a 2012 letter.

“It is clear that your actions were inappropriate and inconsistent with the APS Values and Code of conduct and the Department’s social media guidelines.

“You worked in the National Communications Branch, which has responsibilities including the management of external communication activities (including media liaison), and policy and publications articulating expectations in respect of social networking sites and guidance on their use.

“As a rule of thumb, irrespective of the forum, anyone who posts material online should make an assumption that at some point their identity and the nature of their employment will be revealed.

“Social media websites are public forums. Inappropriate public comment on such sites could put employees at risk of breaching the Code of Conduct.”

Ms Banerji lodged a claim for workers’ compensation in October 2013, which was denied in February 2014. That decision was affirmed on appeal in August 2014. She then took the compensation case to the Administrative Appeals Tribunal, which on Monday ruled in her favour, overturning the August 2014 decision.

“All the tweets that I made were in my own time, on my own equipment,” she told the AAT. “I did not at any stage ever, as far as I’m aware, and I certainly don’t agree that I did, tweet using office equipment or office time or sitting at my desk.

“It was always at home, on weekend, on public holidays, on sick leave, and the reason that I am so sure about those is because I was not speaking for the Department. My motivation for my tweets was essentially to explain the obligations that our country holds in relation to the Refugee Convention.”

Comcare had argued that her termination was a “reasonable administrative action taken in a reasonable manner”, and so it was excluded from liability under the Act.

Banerji v Comcare 2014_5055 AAT “Since the Tribunal finds that the act of termination unacceptably trespassed on the implied freedom of political communication it follows that the act of termination was unlawful and ipso facto cannot be reasonable administrative action.” #auslaw

— LaLegale (@LaLegale) April 16, 2018

Thank you very much for your kind, good words. 💐 I have two opinions on compensation. One that there is no compensation as I’m over 65 now. Other, that age makes no fifference. I need to look into it. 😪 Another battle 😪

— LaLegale (@LaLegale) April 17, 2018

Thank you💐 At first I was happy reading the judgment, and then felt an inordinate sadness that the actions of the department caused me so much damage from which I will never recover. 😪 But yes I am happy that the decision supported my case. #auslaw #auspol #IFOPC

— LaLegale (@LaLegale) April 16, 2018

The AAT was asked to rule on whether Ms Banerji’s sacking was a “reasonable administrative action” or if it was breach of implied freedom of political communication identified by the High Court in 1997.

“We do not consider that the burden of the duty of fidelity and loyalty disappears entirely in the circumstances of anonymous comment,” AAT deputy president Gary Humphries said in his decision.

“One might expect that an employee, even in private, should exercise a measure of restraint in badmouthing their employer, consistently with their duty.

“However, the burden of the duty is slight in comparison with the burden on the implied freedom of an employee to express political opinions where to do so occasions minimal damage to the employer by virtue of the opinions being expressed anonymously.”

The AAT ruled that her illness, identified as adjustment disorder characterised by depression and anxiety, was an aggravation of an underlying psychological condition caused by the sacking.

“Since the Tribunal finds that the act of termination unacceptably trespassed on the implied freedom of political communication, it follows that the act of termination was unlawful, and ipso facto cannot be reasonable administrative action,” Mr Humphries said.

CPSU national secretary Nadine Flood said, “This is a significant decision for our members working in the Commonwealth public sector, although we don’t yet know if the decision will be appealed. It’s also important to note that this decision relates only to compensation rather than the reversal of this heavy-handed sacking.

“The CPSU has been fighting for some time against the increasing Big Brother-type approach that’s being taken with the more than 150,000 people working in Commonwealth agencies. These people should be allowed normal rights as citizens rather than facing Orwellian censorship because of where they work.

“The situation has become even more fraught for Commonwealth employees in the years since this case begun. Last year the Public Service Commissioner launched even more draconian guidelines on the use of social media and other communications.

“The Turnbull Government’s overreach on this is bad for the public sector and bad for our democracy. Public Service Commissioner John Lloyd warned last year that likes and even emojis on social media can result in workers being sanctioned.

“This decision offers a far more reasonable interpretation of the APS Code of Conduct, making it clear that an anonymous criticism on social media from a Commonwealth worker is no different to if that criticism was made by any other citizen.”

A spokesperson for the Home Affairs Department said, “The decision by the Administrative Appeals Tribunal relates to Ms Banerji’s claim for workers compensation.

“These proceedings were not a challenge to the decision dismissing Ms Banerji from her employment by the former Department of Immigration and Citizenship. The Department was not a party to this decision. Compensation decisions are a matter for Comcare.”

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