News & Events

  • Costs, compromise, Calderbanks

    Costs, compromise, and Calderbanks: Recent developments

    “The issue of costs is central to essentially all forms of legal practice.” — GE Dal Pont.

    It is a common (though perhaps dangerous) assumption that a successful party to litigation will obtain an order that the unsuccessful party pay their costs on a party/party basis.

    This is traditionally known as ‘costs following the event’, with the ‘party/ party’ component of a costs order usually amounting to about 70 per cent of the cost a party has actually incurred.

    However, the ACT Court of Appeal’s recent decision in Cooper v Singh provides a useful reminder that the awarding of costs is an entirely discretionary power that courts may exercise as they see fit.

    It follows that the expectations of a party (and their counsel) as cost may not align with the court’s view as to how its discretion should be exercised.

    Singh also highlights the complex relationship between Calderbank offers and Offers of Compromise, the latter a device created by the Court Procedure Rules 2006 (ACT) (“the Court Rules”).

    Singh

    In Singh, the plaintiff was injured in a motor vehicle accident leading to myriad personal injuries. Prior to the matter being heard, the defendants made an offer to settle the case for $540,000 plus costs. The offer was stated to be pursuant to the principle in Calderbank v Calderbank. The effect of the Calderbank nature of the offer was that, should it not be accepted and the plaintiff fail to obtain an outcome better than $540,000, the defendants could seek an order that the plaintiff pay their costs on an indemnity basis from the date of the offer.

    Through this regime, while a plaintiff may enjoy some success in obtaining a judgment, if a defendant can demonstrate that costs were unreasonably incurred because of a plaintiff’s rejection of an offer which would have seen him or her better off overall, a Calderbank may provide costs protection for the defendant. At first instance in Singh, the plaintiff succeeded at hearing but only for $311,603 — a sum considerably less than the defendants’ Calderbank offer.

    With the offer having been made shortly before the commencement of the hearing, the defendants sought an order that their costs, essentially those of the hearing days, be paid by the plaintiff on a full indemnity basis.

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    First published in Ethos.

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  • False Positive Employment Reference

    A false positive: employment reference checking

    The humble employment reference is an indispensable part of recruitment, but HR managers should be aware of risks.

    While the vast majority of employers take the provision of references seriously and provide fair and beneficial documents, a misleading or erroneous reference can be costly. A candidate may require
    more training than their reference suggests, or may be entirely unsuited for the position. A derogatory reference, meanwhile, can considerably harm an individual’s job prospects.
    Given the vulnerability of workers and prospective employers to inaccurate references, it is perhaps surprising that employers have few legal obligations to provide honest references.

    Duty to give a reference?

    If an employer is reluctant to provide a positive reference, they may be tempted to not provide one at all. Sometimes this will be the best option: the employer does not openly criticise a former employee, the worker is not burdened by a poor report and prospective employers are free to draw their own inferences.

    However, there are limited instances where employers may be obliged to provide a reference. In Australia, there is some judicial support for the implication of a contractual term compelling employers to provide references. If it is usual practice in an industry to provide them, and the worker is unlikely to find work without one, the courts might imply such a term. This will, however, be highly context-specific and there is certainly no blanket legal duty on employers to give references.

    Defamation and negligence

    Once a reference is given, employers may be liable under defamation law if it is inaccurate and damaging. An aggrieved worker might seek damages, or injunct the employer from making further defamatory statements. Employers can avoid liability by being honest and fair in their assessment of the worker, and only making negative statements supported by objective evidence. Provided the negative reference was not given for reasons of malice, the doctrine of qualified privilege will provide a strong defence to defamation lawsuits.

    While a prospective employer has no protection under defamation law for damagecaused to them by a false-positive reference, they may be able to sue for negligence. Employers might owe a duty of care to anyone who is likely to suffer damage as a consequence of (both negative and positive) misstatements in an employment reference, which would encompass the worker and possible future employers. This is certainly the legal position in Britain where one case saw an ex-employee successfully sue a company for negligence following the provision of a damagingly inaccurate reference.
    The legal position is unsettled in Australia – although some courts have endorsed the British approach, differences in underlying law means the question remains open. Until then, employers would be well-advised to ensure they are fair, honest and take reasonable care when providing employment references.

    Disagreeable agreement

    It is not uncommon for an employer and employee to agree upon a reference if the employment relationship breaks down and the employee exits by way of a settlement deed. These references are typically positive or neutral, and might not reflect the employer’s true sentiment. If Australian courts do establish a duty to provide accurate references, employers could be in breach of that duty by giving a false-positive, albeit agreed, reference.

    It is difficult to reconcile these competing concerns, and while the law remains unsettled, employers are in an uncomfortable position. As it is far harder to attach liability for omissions than positive statements, where possible, employers should only include objectively verifiable statements in an agreed reference.

    While several legal risks arise when organisations give employment references, they can be mostly mitigated through common sense. Provide accurate information, do not defame former employees and keep any negative comments to oral communication. If these precautions are followed, references need not be a risky business.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. 

    First published in HR Monthly.

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  • Dirty washing on the line: Nasty employment disputes can generate bad publicity. How can HR help protect the organisation?

    Dirty washing on the line: Nasty employment disputes

    Nasty employment disputes can generate bad publicity. How can HR help protect the organisation?

    Newspaper readers love scandal, and employment disputes can be particularly scandalous. As the widely-publicised litigation between Channel Seven and Amber Harrison demonstrates, the airing of workplace grievances in open court can be damaging to all. Unfortunately for media-shy employers, the principle of open justice – that litigation must be open to the public – is an essential feature of the Australian judicial system.

    Gagging orders

    There are exceptions to the open justice principle. Most courts and tribunals have power to issue suppression, anonymity and pseudonym orders. For example, the Fair Work Commission can ‘de-identify’ (or hide the identity of) parties, order closed hearings, restrict attendance and prohibit the publication of evidence. These orders can be granted where the Commission is “satisfied that it is desirable to do so because of the confidential nature of any evidence” or “for any other reason”. The Federal Court and state courts have similar powers.

    Yet despite the scope of its powers, the Commission (and various courts) have been particularly hesitant to abrogate the open justice principle in the employment setting. The 2014 case of Corfield is illustrative. After an employee had sought an anti-bullying order, the employer applied to the Commission to conceal the identity of the parties. The employer submitted that “the publication of the name of the applicant and respondents in what is essentially a private and confidential matter will not be conducive to good governance of the respondent employer”.

    Given the employment relationship was ongoing, the respondent argued that a de-identification order was appropriate. Commissioner Michelle Bissett didn’t agree. The submissions of the employer were insufficient to overcome the “presumption… that a hearing will be conducted in public”. She concluded: “Mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application.” While this is not an insurmountable hurdle, it does require the employer to demonstrate compelling grounds.

    Behind closed doors

    There are other ways to minimise the likelihood of employment disputes descending into trial by media. If an employee is exiting in a situation which may turn acrimonious, ask them to execute a Deed of Release in return for a small ex-gratia payment in addition to their termination entitlements. Not only does this prevent the employee from commencing litigation (at least in theory – some disgruntled ex-employees have been known to try suing regardless), but the Deed can also include a confidentiality provision. This restrains either party from disclosing the terms of the Deed or related circumstances, and a breach entitles the affected party to sue for damages.

    Such Deeds can include non-disparagement obligations. These often require that “the parties must not disparage each other”, with disparage defined as “any negative statement, whether written or oral, about either party”. Non-disparagement provisions are common in settlement agreements between commercial disputants, but can also be used in the employment context.
    Such clauses are no panacea. Particularly aggrieved employees may not agree to a Deed of Release, preferring to chance their arm before the Fair Work Commission or a court. And if the employee breached the confidentiality or non-disparagement provisions, (public) litigation would be required to seek damages – defeating the very point of the clause. However, in our experience once a Deed is signed and the employee has left the organisation, such steps rarely become necessary.

    Judicial luminary Michael Kirby once wrote: “An unfortunate incident of the open administration of justice, is that embarrassing, damaging and even dangerous facts occasionally come to light.”
    This sentiment may be cold comfort for human resource professionals trying to protect their organisation’s reputation. It only underscores, though, the importance of effectively managing the termination process to ensure that an employer’s dirty laundry is not aired on the front page.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Kieran Pender for his help in preparing this article. 

    First published in HR Monthly.

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  • High heels and head scarves: dress codes discrimination in the workplace

    High heels and head scarves: dress codes & discrimination in the workplace

    “Discriminatory dress codes remain widespread… the existing law is not yet fully effective in protecting employees from discrimination at work.” — Report of a British House of Commons Joint Committee.

    In 1977, the British Employment Appeal Tribunal heard an unusual complaint from an aggrieved bookseller. Austicks Bookshops in Leeds had a policy that prohibited female workers from wearing trousers. One employee, Ms Schmidt, refused to comply. She was dismissed, and subsequently brought proceedings on the basis that the employer’s policy constituted sex discrimination.

    In rejecting Ms Schmidt’s claim, Justice Nicholas Phillips recognised the expansive powers of an employer to determine appropriate dress code in the workplace. “As a general proposition,” he opined, “an employer is entitled to a large measure of discretion in controlling the image of his establishment, including the appearance of staff, and especially so when, as a result of their duties, they come into contact with the public.”

    Read in 2017, the judgment in Schmidt seems rather antiquated. Certainly, the law has taken considerable steps over the intervening four decades to address such discrimination. Yet the dilemma faced by Ms Schmidt — comply with a sex-specific dress code or be dismissed — lingers to this day. Indeed, just last year professional services firm PwC found itself at the centre of a media storm after an outsourced receptionist in London was sent home for refusing to wear high heels. The furore led to a joint committee inquiry by the House of Commons, which found that clothing related
    discrimination remained widespread in Britain and had not been adequately addressed by legislation.

    There is no evidence to suggest that the situation is any better in Australia. This is not solely a matter of sex discrimination either. An employer’s ability to regulate employee dress standards, regardless of gender, remains unsettled. Questions of religious discrimination also intrude.

    In March 2017, the European Court of Justice found that it was not discriminatory to fire a Muslim employee who insisted on wearing a head scarf contrary to a workplace policy prohibiting visible signs of religious belief. These issues are interrelated. This article will begin by discussing an employer’s power to prescribe and enforce dress codes in the workplace. It will then consider possible legal remedies available to aggrieved employees, located in discrimination legislation and the Fair Work Act 2009 (Cth). Given the paucity of Australian case law in this area, reference to foreign  jurisprudence will be made where appropriate.

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    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Kieran Pender for his help in preparing this article. 

    First published in Ethos.

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  • We need the voices of public servants in the political debate. Their free speech is in peril

    Free speech is in peril: We need the voices of public servants in the political debate.

    Praising your agency is welcome, but not criticising it – new social media guidelines continue a troubling trend of silencing public servants’ free speech.

    Another day, another attack on the ability of public servants to participate in Australian democracy.

    On Monday the Australian Public Service Commission (APSC) released revised guidance on how federal government employees should use social media. It advised that expressing disagreement with government policy, criticising the prime minister or even liking a negative social media post could land public servants in hot water. This, the APSC contended, was the case whether or not comments were made anonymously, on a private account or after hours.

    The new guidelines, which public service commissioner John Lloyd insists are “not more restrictive than previous guidance”, represent the latest frontier in a sustained campaign of government encroachment on the free speech of public servants. In 2013, an immigration officer was fired for criticising department policy on Twitter using a pseudonym. Last year, Centrelink was forced to reinstate an employee who had been terminated for speaking out online. In the Australian Capital Territory meanwhile, the local Labor government recently attempted to restrict criticism from public servants and force them to “dob in” colleagues who disobeyed. For every case that makes the headlines, there are also many more where public servants are sanctioned behind closed doors.

    Nor is the issue straightforward. The government undoubtedly has a legitimate interest in maintaining a neutral and effective bureaucracy. The overt politicisation of the public service would have hugely deleterious consequences, from wholesale turnover following change of government to diminished societal trust in public administration.

    But that does not mean public servants should be silenced. Doing so not only disenfranchises them from proper participation in the system of Australian democracy; Australia’s limited free speech protections, it should be remembered, are predicated on the nexus between political communication and representative government. But it also deprives the broader community of important voices in political debate – public servants are often some of the most qualified contributors to policy discussion.

    The APSC’s guidance is blind to such countervailing considerations. It offers:“Criticising the work, or the administration, of your agency is almost always going to be seen as a breach of the [code of conduct].” Praise is welcome, though. “This doesn’t stop you making a positive comment on social media about your agency,” the guidelines continue, making a mockery of the stated desire for impartiality. Neutrality, it seems, does not swing both ways.

    The latest diktats from commissioner Lloyd’s office also raise intriguing legal questions. In 2013, amendments to the public service act sought to extend the code of conduct’s reach – certain obligations were professed to apply “at all times.” Monday’s guidance argued: “[A public servant’s] capacity to affect the reputation of [their] agency and the APS does not stop when [they] leave the office … APS employees are required by law to uphold the APS Values at all times.”

    Except, “at all times” may not really mean “at all times”. In 2016, Fair Work Commission vice-president Adam Hatcher dismissed arguments to that effect from Centrelink. “I reject completely,” he wrote, the proposition that the law requires public servants “to be ‘respectful’ at all times outside of working hours, including in the expression of their attitude to the government of the day.” Such a “gross intrusion into the non-working lives and rights of public servants”, Hatcher suggested, “would require express and absolutely unambiguous language.”

    Except, this is a half-truth at best. In 2003, customs officer Peter Bennett was directed not to make media comment in his capacity as a union representative where doing so would disclose information gained via his official position. Bennett refused to comply and was charged with breaching a secrecy regulation made under the public service act’s predecessor. Justice Paul Finn of the federal court invalidated the regulation on free speech grounds.

    It is a great shame the APSC overlooked this case while preparing new social media guidance for the public service. If its drafters had read the judgment carefully, they might have reflected on one particular line. “Public servants cannot be,” Finn quoted, “‘silent members of society’”.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. 

    First published in The Guardian.

    Disclosure: John Wilson acted for Peter Bennett in the federal court proceedings.

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  • What is Procedural Fairness

    'I know it when I see it': what is procedural fairness?

    It can be hard to define, but procedural fairness must underlie public service employment decisions.

    Of hardcore pornography, a United States Supreme Court judge once wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Putting aside the far less titillating context, much the same can be said of procedural fairness. This amorphous concept is an essential element of employment-related decision-making in the Australian Public Service. Yet procedural fairness is incredibly difficult to define in the abstract.

    It also means different things to different people: for decision-makers, it can be a frustrating restraint on the efficient exercise of their powers, while for those affected by an adverse decision the alleged absence of procedural fairness is often a catch-all for any number of grievances. For public servants charged with ensuring procedural fairness, “I know it when I see it” is hardly sufficient.

    The concept, an offshoot of natural justice, has ancient origins. A British judge once observed that “even God himself did not pass sentence upon Adam, before he was called upon to make his defence”. For the secular jurist, an early judgment of the Australian High Court drew support from a tragedy by Roman playwright Seneca. Justice Ian Callinan similarly posited: “That no man is to be judged unheard was a precept known to the Greeks.”

    Two millennia later, it remains accepted that, absent clear statutory language to the contrary, a government decision-maker intending to exercise their power in a manner that affects rights, interests or legitimate expectations must afford procedural fairness to those affected. In the APS context, this common law duty is supplemented by statute: section 15 of the Public Service Act requires agency heads to establish code of conduct procedures that have due regard to procedural fairness.

    What, then, does this entail? To begin with, it is clear what procedural fairness is not. The High Court has repeatedly stressed that “what is required by procedural fairness is a fair hearing, not a fair outcome”. The inverse is also true: a decision might be objectively “right” but can still be invalidated via judicial review if it was made contrary to the requirements of procedural fairness. British courts have summarised that “judicial review is concerned, not with the decision, but with the decision-making process”.

    Beyond these exclusions, the concept has two primary components: the hearing rule and the bias rule. The former requires that someone who will be affected by a prospective administrative decision must be heard, whether through oral or written submissions, before the decision is made. Misconduct investigations are an obvious example: it would be grossly procedurally unfair for a decision to be issued without the alleged wrongdoer having an opportunity to make their case.

    The second element of procedural fairness demands that a decision-maker be free from bias or any apprehension of bias. This requirement derives from a central legal tenet: a person cannot be the judge in his or her own cause. The decision-maker in a code of conduct investigation could not be the complainant, nor have close ties with the accused. While actual bias is readily identifiable and rarely problematic, the apprehended bias limb often requires closer attention. Decision-makers must ensure that a reasonable bystander would not apprehend the existence of bias from the circumstances.

    One difficulty in defining procedural fairness is its context-specific nature. As High Court justice Frank Kitto mused in 1963: “The books are full of cases which illustrate … the impossibility of laying down a universally valid test … ‘the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.’ ”

    However, drawing on my experience acting for public servants in countless APS code of conduct matters, I can offer some guidance. First, procedural fairness requires that specific and particularised allegations of misconduct be put to the accused. It is insufficient to state these at a level of generality: for example, “it is alleged that, over the past 12 months, you have breached the APS code of conduct contained within the Public Service Act, by engaging in a course of conduct that constituted bullying of your colleagues”.

    Instead, the particular detail of each and every allegation must be put: “It is alleged that, on June 12, 2017, you said words to the effect of “you are stupid and useless” to John Smith, being conduct amounting to a breach of subsection 13(3) of the Public Service Act because you failed to treat everyone with respect and courtesy, and without harassment.”

    The NSW Supreme Court confirmed the need for such an approach in Etherton v Public Service Board. The allegations in that case were provided to the accused in broad terms and accompanied by hundreds of pages of evidence. Justice David Hunt scolded the decision-maker: “It is only by knowing precisely the basis upon which the board has charged the plaintiff that he can properly prepare.”

    Decision-makers are also well-advised to adopt a liberal approach to deadlines. In my experience, decision-makers often set artificial deadlines and insist that the accused reply promptly to allegations. In Etherton, the accused was given just three days to admit or deny the charges against him. Other than in the most urgent of cases, such deadlines will be procedurally unfair.

    It is apt to end with complementary quotations from two of Australia’s past chief justices. In a 2010 paper, Robert Gleeson observed: “Procedural fairness is part of our cultural heritage. It is deeply rooted in our law.”

    Murray Gleeson had previously offered a method to translate such lofty sentiment into practice. “Fairness is not an abstract concept,” he once wrote. “It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

    Procedural unfairness might be hard to define, but judges and lawyers know it when they see it.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Kieran Pender for his help in preparing this article. 

    First published in The Canberra Times.

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  • David and Goliath in the Fair Work Commission

    David and Goliath in the Fair Work Commission

    Government departments have recently gained an unfair advantage in workplace disputes, employment lawyer John Wilson explains. But the odds have always been stacked against public servants in disputes with the government.

    A recent Fair Work Commission decision has permitted Australian Government Solicitor lawyers and their state or territory counterparts to appear as of right in the industrial tribunal. This is a troubling judgment for a number of reasons, but is particularly concerning for public servants.

    Typically, parties can only be represented by a lawyer before the Commission with the approval of a Commissioner. This is because the Fair Work Act jurisdiction is intended to operate in an informal and non-adversarial manner. Until this point, lawyers for both the applicant (say an aggrieved public servant) and the respondent (the government department) would have to state their case as to why they should be allowed to represent their client. While in most cases leave to appear was granted, the Commission retained the discretion to decline representation when appropriate.

    A leg up for government departments

    Following Gibbens v Department of Immigration and Border Protection, only the employee’s lawyer has to make such arguments. At first glance this is unproblematic; few Commissioners would decline an employee representation when the government is represented by the Australian Government Solicitor. But often employees do not have the finances to procure legal representation. It is now likely that, despite the clear inequity, a public servant might be forced to battle their department and the Australian Government Solicitor. Employees already feel disadvantaged when legally sparing with their employer, let alone when they are unrepresented against the largest employer in Australia with guaranteed legal representation.

    Beyond the tangible effect on employees, taxpayers might also be burdened. The Australian Government Solicitor must bid for government work alongside private law firms, to ensure public legal work is done at competitive rates. But departments will now have an added incentive to engage their services over private options, regardless of costs differences.

    The Gibbens precedent

    Given these deleterious side effects, what motivated Commissioner Williams’ decision in Gibbens? Under the Fair Work Act, in-house lawyers – employees of the organisation before the Commission – are excused from the requirement to seek permission to appear. The Department of Immigration and Border Protection argued that, as Australian Government Solicitor lawyers are employees of the Commonwealth, they were effectively in-house counsel for the department.

    Commissioner Williams agreed. He observed: “I have considered the submissions of both parties and am satisfied that lawyers of the AGS are entitled, as of right, to represent the Respondent being the Commonwealth of Australia (Department of Immigration and Border Protection) and consequently permission from the Commission is not required.” Commissioner Williams offered no further reasons and did not consider the policy consequences of his judgment. I have already seen other departments seeking to rely on this decision.

    Whether the judgment stands is another question. While Commissioner Williams’ interpretation of the legislation is sound, the practical implications strike at the heart of the Fair Work Act’s objectives in this regard. Additionally, the relevant statutory provisions relied upon in Gibbens concerning in-house lawyers hardly represents an accurate description of the Australian Government Solicitor. That agency has to bid for government work alongside other law firms, which is rather inconsistent with being in-house. Yet the likelihood of a public servant appealing the Gibbens precedent is slim – few employees have the funds or desire to challenge such a procedural point of principle.

    To further illustrate the issue, departments do have their own in-house lawyers. The Department of Immigration and Border Protection has an extensive legal department. If this is the case, why would any department choose to engage the Australian Government Solicitor’s services over that of its in-house lawyers? Probably because such counsel are not well versed in employment law matters while the Australian Government Solicitor have specialists.

    Gibbens leaves public servants in an undesirable position. The odds have always been stacked against public servants in disputes with the government, and department are already spoilt for choice when it comes to legal representation. David against Goliath indeed.

    John Wilson is managing legal director at Bradley Allen Love. He acknowledges the assistance of his colleagues Rebecca Richardson and Kieran Pender in the preparation of this article.

    First published in the Mandarin.

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  • The most common workplace issues that never reach the courts

    The most common workplace issues that never reach the courts

    Many public sector workplace disputes never end up in court, says leading employment lawyer John Wilson.

    In the popular imagination, workplace injustice ends with triumph on the courtroom steps. Unfortunately, the reality is often less rosy. Many workplace incidents never find their way to courts or employment tribunals, for reasons ranging from cost to complexity. Even when lawyers are engaged, the vast majority of disputes settle before being heard by a judge. Here are three workplace issues that are rarely litigated.

    Unlawful discrimination

    Prior to the landmark 2014 decision in Richardson v Oracle, non-economic damages in discrimination cases (including sexual harassment) were typically limited to no more than $10,000. This provided a considerable disincentive to litigating unlawful discrimination, with legal costs often outweighing the compensation received. While Richardson has changed things for the better – six figure general damages sum are no longer uncommon – it remains that few of these cases see the light of a courtroom.

    Beyond uncertainty as to pay-out, three other factors inhibit litigation. Firstly, discrimination claims under federal law must first be taken to the Australian Human Rights Commission, which insists on a cumbersome and often ineffective conciliation process before an aggrieved individual can take court action. Secondly, discrimination laws provide no costs protection, so if the complainant is unable to make their case, they can face hundreds of thousands of dollars in legal fees; government departments rarely use cheap lawyers. Finally, there is a psychological barrier – discrimination (whether age, sex, disability, race or another attribute) can be deeply traumatic, and many victims would rather forget than relive the incident under cross-examination.

    There is, though, one positive reason why discrimination matters are not ending up in court. Employers have rightly adopted, and in admirable instances driven, the broader community’s increasing prevalent stance against all forms of discrimination. One effect of this has been stronger internal protections against discrimination through the enforcement of ‘zero tolerance’ policies. Aware of the risk of vicarious liability, many employers have been diligent in stamping out discrimination.

    Work health and safety complaints

    In every jurisdiction around Australia, employers owe a duty to keep their workplaces free from reasonably preventable risks to their employees. For example, work health and safety legislation and regulations require employers to ensure their employees are not subjected to unreasonable risks while at work. Most employers are highly responsive to employee feedback that something in the workplace is unsafe, and will quickly rectify the situation.

    But when an employer fails to act, an employee has little scope for recourse. Work health and safety legislation provides no individually-enforceable cause of action for employees; its provisions are typically enforced by the relevant regulator. This means that the right of an employee to sue an employer for breaching their workplace safety obligations typically does not arise until after the fact, once an injury has occurred.

    However, if a government department failed to act promptly to reports of workplace hazards, the Public Interest Disclosure Act provides an alternative route to agitate the matter. The whistleblower protection legislation includes within its definition of disclosable conduct: “conduct that unreasonably results in a danger to the health or safety of one or more persons”. In circumstances of “substantial and imminent danger”, disclosure to the media may even be permissible. A paper cut probably does not meet this threshold, though.

    Unfair Code of Conduct investigations

    As all public servants (should) know, their employment is subject to additional conditions found in section 13 of the Public Service Act: the APS Code of Conduct. Complaints that employees have not upheld their obligations under the Code are usually managed through internal processes, or sometimes outsourced to external investigators. Public servants often complain that these investigations are managed unfairly, with departments regularly failing to comply with their procedural fairness obligations. The allegations are not properly particularised, the decision maker is bias, the accused is not given an adequate opportunity to respond – the list of grievances is endless.

    Regrettably for aggrieved public servants, few will possess the financial resources to successfully remedy these errors through judicial review. Not only will the costs of pursing such a claim regularly enter six-figures, judicial review also operates in an ‘adverse costs’ jurisdiction. This means that if the employee loses, they will not only be liable for their own costs bill, but also that of the Commonwealth.

    Additionally, there are very limited remedies available to judicial review, with the most common being an order that the decision be remade in accordance with procedural fairness. This means the investigation will be rerun, often leading to the same conclusion anyway. One alternative route is the Merit Protection Commissioner, who can review administrative decisions made within the public service in a variety of circumstances. This avenue is without cost, and the Commissioner can recommend that the original decision be set aside, varied or remade.

    John Wilson is managing legal director at Bradley Allen Love. He acknowledges the assistance of his colleagues Robert Allen and Kieran Pender in the preparation of this article.

    First published in the Mandarin.

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  • Federal public servants beware Big Brother is watching you

    Federal public servants beware: Big Brother is watching you

    For federal public servants, sitting on your couch at night scrolling through Facebook or Twitter on your phone, “liking” posts critical of Malcolm Turnbull could spell trouble for you at work. Ditto if you send a private email criticising the government to a friend from your home computer.

    But if you want to cheer on Turnbull on social media, no worries, that’s acceptable to the government — unless your Facebook friends and Twitter followers then vent their disagreement.

    Under “new guidance” issued by the Australian Public Service Commission this week, federal government employees could be in breach of the public service code of conduct if they do not remove “nasty comments” about the ­Coalition posted by others on the employee’s Facebook page.

    In short, it is not enough for public servants to self-censor; they need to censor the views of others, even after hours.

    “The latest guidance continues a worrying trend of restricting the free speech of public servants,” says John Wilson, managing legal director of Canberra law firm, Bradley Allen Love Lawyers.

    “This issue pits two competing and compelling considerations. On one hand, the government has a very legitimate interest in maintaining an impartial and effective public service, while on the other public servants are entitled to a private life like anyone else. This latest guidance, though, overreaches to such an extent that it is of questionable constitutionality.”

    According to the commission, liking or sharing anti-government material on social media will generally be taken as an endorsement and in the same light as if the public servant created the material.

    Stating the code operates “in ­effect” to limit an individual’s right to freedom of expression, the guidance warns public servants against posting criticism anonymously or criticising government policy in an email to a friend.

    “There’s nothing to stop your friend taking a screenshot of that email, including your personal details, and sending it to other people or posting it all over the internet, Again, the breach of the code is not in their subsequent publication of your material but in your emailing that material in the first place.”

    As for “nasty comments” made by others, it says: “Doing nothing about objectionable material that someone else has posted on your page can reasonably be seen in some circumstances as your endorsement of that material. If someone does post material of this kind, it may be sensible to delete it or make it plain that you don’t agree with it or support it. Any breach of the code would not come from the person making the post. It would come from how you ­reacted to it.”

    Even if a social media account is limited to family and friends, the employee will be in breach of the code if an anti-government post was shared by a friend. “The breach of the code occurs at the time you made your post,’’ it says.

    Public comment is defined as “anything that you say in public or which ends up in public”. “This can include something you’ve said or written to one person. If your comment has an audience, or a recipient, it’s a public comment.”

    The government says a public servant’s capacity to affect the reputation of their agency and the public service “does not stop when you leave the office”. “The comments you make after hours can make people question your ability to be impartial, respectful and professional … at work. APS employees are required by law to uphold the APS values at all times.”

    University of Adelaide law professor Andrew Stewart says the warning about private emails is “legally questionable”. He is also critical of the apparent lack of “even-handedness” in the government’s approach.

    According to the guidance, criticising your employer is “almost always going to be seen as a breach of the code” but “this doesn’t stop you making a positive comment on social media about your agency, or using social media to explain the policy and services that it delivers”.

    “That’s beginning to look like you are supposed to be above politics unless you are praising us,’’ Stewart says.

    “The idea that you can’t inter­vene in political matters unless you are praising the government of the day seems to me to be highly questionable.’’

    He says he believes it is also an “overreach” legally for the government to warn employees to remove negative comments made by others. “The idea you are now starting to have to take proactive steps to censor other people’s views when there is nothing to suggest you have personally endorsed those views seems to me legally to be getting into question­able territory,’’ he says.

    “And, politically, it’s a terrible look.”

    Community and Public Sector Union national secretary Nadine Flood says it is “completely unreasonable” for a worker to face disciplinary action over a private email or an act as benign as liking a social media post.

    “Of course, there needs to be limits, but this policy goes too far,’’ she says. “The notion that the mum of a gay son who happens to work in Centrelink can’t like a Facebook post on marriage equality without endangering her job is patently absurd.” But while critical of the government’s “ham-fisted” approach, Stewart says he does not see a legal problem with public servants being warned about liking anti-Coalition posts.

    “It seems to me that if you are going to have rules that say public servants are not supposed to get involved in political matters, liking a post surely means you are endorsing what is said in that post,’’ he says. “It’s reasonable to say there’s no difference between making a statement which you are not allowed to make under the code, and you publicly endorsing someone else making a statement you are not allowed to make under the code.”

    Australian Public Service Commissioner John Lloyd says the guidance “sets out the risks public servants need to take into account when they consider what they say and how they say it’’.

    He says public servants using privacy settings on social media is an “unreliable protection”, while posting anonymously does not miraculously sanitise “objectionable material”. “That ­argument is similar to a burglar ­arguing that charges should be dismissed because he wore a balaclava,’’ he says.

    Stewart says a public servant dismissed for breaching the code of conduct can challenge the fairness of their dismissal in the Fair Work Commission.

    In March last year, a Centrelink officer who called clients “spastics” and “whingeing junkies” on social media and said he was embarrassed to work for the Department of Human Services given its “disgraceful” processing times won his job back after making an unfair dismissal claim.

    The public servant, using a user­name, “mmmdl”, contradicted the department’s social media unit over the time taken for processing youth allowance claims. The investigators appear to have trawled through thousands of posts through several years to identify the ­officer.

    But while commission vice-president Adam Hatcher found the public servant’s “seriously inappropriate” conduct was a valid reason for his sacking, he found the dismissal harsh.

    He said the penalty of dismissal was disproportionate to the gravity of the misconduct, given it bore no relationship to his actual work performance, caused no detriment to the department, was engaged in impulsively rather than deliber­ately, and consisted of a small number of widely interspersed comments across a period of years.

    “It may be accepted that, in some cases, the public expression of political views by public servants in their private time might compromise their capacity to carry out their work functions impartially and this might, consequently, contravene (the code of conduct),’’ Hatcher wrote.

    “This might happen if, for example, a departmental secretary, a policy adviser, a ministerial staff member or a senior diplomat publicly and emphatically criticised the government of the day. However, in the case of the vast majority of public servants who perform routine administrative tasks, it is difficult to envisage any circumstance in which the robust expression of political views and criticism of the government outside of work could have an impact on the performance of their ­duties.’’

    Wilson says the law in this area is unsettled. “In 2003, the Federal Court found an official secrecy regulation unconstitutional for infringing the implied freedom of political communication when it was used to gag a union representative within Customs,’’ he says.

    “On the other hand, in 2013, the Federal Circuit Court rejected the case of an immigration officer who was disciplined and lost her job for tweeting criticisms of the government’s border policy.

    “We are still awaiting a definitive judgment from the High Court on the extent to which the government can intrude into the private lives of public servants and limit their free speech.”

    Lloyd says termination of a public servant for misuse of social media would be rare.

    Asked whether the guidance would require public servants to not like social media posts opposing the government’s same-sex marriage postal vote process, or whether employees should remove “nasty comments” about it from their social media platforms, Lloyd says: “Public servants should apply the principles of the social media guidance to this issue. All public servants should exercise judgment and discretion when commenting publicly on same-sex marriage. Like all Australians, public servants should engage with this issue respectfully and with courtesy. The appropriateness of specific social media activities will depend on the context in which they occur.”

    Flood says his response is a “non-answer”, saying Lloyd is seeking to use the guidance to “scare people into not exercising the right they have to engage on social media and in public debate’’.

    “You don’t have to actually act to enforce the guidance to have that chilling effect,’’ she says.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. 

    First published in The Australian.

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