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Case H: Social media posts breach Code of Conduct

The Department had found that Ms B had used an anonymous Twitter account to post critical tweets about government border protection policies. Ms B had initially denied that the Twitter account was hers.

The Department concluded that she had breached the APS Code of Conduct by making comments that were highly critical of the government, the minister, the Department and Ms B's manager. It also found that she had breached the Code in continuing secondary employment as a psychoanalyst.

The Department dismissed Ms B as a result of these breaches.

Ms B claimed that she had been subjected to victimisation in the Department, and that she believed the decision to undertake disciplinary action in relation to her social media statements was in retaliation for her bullying complaint against a manager.

Ms B argued in her defence that her tweets were not offensive or damaging to individual persons, but were instead simple expressions of political opinion made in her own time away from work.

The court hearing focussed on whether or not the Constitution protected public servants' freedom of speech. The judge's finding was that Australians had no 'unfettered implied right (or freedom) of political expression'. He stated that even if there was a constitutional right of expression of political opinion, it would not provide a licence to breach a contract of employment.

Lessons

  • Posting under a pseudonym does not prevent an employer from taking action against an employee for potential breaches of the Code of Conduct.
  • It's a good idea for agency social media policies to include advice that anyone who posts material online should assume that at some point their identity and the nature of their employment will be revealed.
  • Employees should be careful to ensure that, should their identity become known, material they have posted does not raise a reasonable perception that their views will affect their ability to perform their duties impartially and to serve the government of the day.