WRITTEN BY John Wilson & Kieran Pender
The recent furore around the conduct of Home Affairs boss Michael Pezzullo contained, for employment lawyers at least, a rather large dose of irony. Last month, the Sydney Morning Herald and The Age revealed Mr Pezzullo had sought to influence the political process through his ongoing communications with a Liberal Party powerbroker (at the time of writing he has stood aside, pending an investigation by the Australian Public Service Commission). Concerns have been expressed about the politicisation of the public service and whether his conduct is an aberration or points to deeper systemic issues.
But the irony is that it was Mr Pezzullo’s department that for years pursued legal proceedings in relation to political speech by public servants, which ended in the High Court in 2019 with a robust defence of APS impartiality at the expense of the rights of individual workers. While the public servant in that case, Michaela Banerji, was fired for her anonymous tweets before Mr Pezzullo took over, it sparked a legal fight which he oversaw as it escalated to the High Court.
If, as the court found in that case at the government’s urging, a mid-level public servant cannot tweet criticism of departmental policy, anonymously and without identifying themselves as such, it is probably not a good idea for a top mandarin to engage in archly political conduct. While we would not wish to pre-judge the APSC’s investigation, Mr Pezzullo’s actions as reported do appear to raise clear concerns under the APS Code of Conduct.
But whereas Mr Pezzullo’s conduct evidently warrants further investigation, we have for many years rallied against the increasing encroachments by employers, including the APS, into the private lives of employees. Political conduct with some nexus to the workplace raises challenging issues – as the APSC’s guidance around public servant participation in advocacy around the recent Voice referendum underscored. Nor are these issues isolated to the public sector – while particular considerations arise for public servants, private sector employers must also be careful in the extent to which they seek to limit their employee’s political activities. It seems timely, then, to revisit the topic.
Within the workplace and within work hours, employers have significant control over their employees. But most cases involving the political speech or activities of employees occurs on the outer edges of the employment relationship – out of hours and typically outside the physical workplace. Hence the question of employer control of political speech is a subset of a wider question about out of hours conduct, a topic we have explored in more detail in these pages before.
The Australian employment relationship traces its lineage to pre-Industrial Revolution Britain. It was a time of masters and servants; the workplace relationship was all-encompassing, with workers typically living on-site. As such, the master had complete control over, and responsibility for, the servant, and there was no such concept as “out of hours”.
That changed with the emergence of factory work and a time-based employment relationship, where employer control ended entirely when an employee clocked out for the day. “Provided it did not diminish their capacity to perform the work, the out of hours opinions, hobbies and odd jobs of these employees were of little interest,” eminent scholar Ron McCallum has written.
The complexity in this area in modern Australian employment law largely arises because we have reached an inexact middle ground between these two poles. Fortunately, employment relationships are no longer all-consuming, 24/7, master-servant arrangements. But nor do most of us still work in roles without any workplace nexus once we exit the office. It is the nature of the modern world that many employees serve as de facto ambassadors for their employers, even out of hours, and immoral or illegal conduct even of an evening or a weekend could be reasonably expected to impact the workplace. The use of social media and the increased prevalence of working from home have only compounded these shifts. Where, then, to draw the line?
The leading authority is the case of Rose v Telstra. Two workers were away on work business, staying in work-provided hotel accommodation, when they became inebriated and began arguing. They started to fight each other in the hotel. A window was broken, one employee required stitches and another was arrested. The altercation occurred in the early hours. While they were not on duty or in uniform, hotel staff were aware the pair worked for Telstra. Mr Rose was subsequently sacked, and filed an unfair dismissal claim.
Vice President Ross, in what has become a seminal decision, articulated the relevant test for when an employer may dismiss an employee for their out of hours conduct.
Such circumstances are limited:
• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
• the conduct damages the employer’s interests; or
• the conduct is incompatible with the employee’s duty as an employee.
In essence, the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.
Applying this test, Vice President Ross held that the dismissal was unfair because it ‘lacked the requisite connection to [Mr Rose’s] employment.’ That was not to condone the behaviour. ‘I do not doubt that the applicant’s behaviour … was foolish and an error of judgment,’ Vice President Ross added. Yet personal mistakes do not necessarily justify workplace dismissal. ‘[E]mployers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life.’
Rose remains the applicable test for private sector employers in seeking to govern the out of hours conduct of their employees. It was recently endorsed by a full bench of the Fair Work Commission. This means that for an employer to show that an employee’s private political activity should justify employer oversight, they must satisfy one of the criterion outlined in Rose Failing that, oversight will be legally questionable. Firing an employee for their out of hours political conduct, absent satisfaction of Rose, may be unfair dismissal. Directing an employee not to participate in a political rally, absent Rose factors, might not be lawful and reasonable. Anti-discrimination issues might also arise, given political opinions are protected under some state and territory laws (including in the ACT), but not everywhere.
It is prudent, then, for private sector employers to tread carefully. Where an employee undertakes political speech or activities in their own time – say posting tweets, or attending a rally – it is none of an employer’s business unless they can show that it is likely to cause serious damage to the employment relationship, damages the employer’s interest or is incompatible with their employment duties. This will always be a factually specific inquiry; an employee working in a government relations role may legitimately be expected to be discrete in personal political activity than a bus driver. But the onus is on the employer to demonstrate why they have a legitimate interest in an employee’s private conduct.
The situation is somewhat different in the public sector. The APS Code of Conduct, in s 13(11) of the Public Service Act, provides that a public servant must “at all times behave in a way that upholds” the APS Values, which includes impartiality: “The APS is apolitical”. While “at all times” probably does not mean 24/7, 365 days a year, where there is any nexus with employment or potential detriment to the reputation of the public service, APS employees may face Code of Conduct investigations.
The limits of APS oversight have evolved. In Bennett v President, Human Rights and Equal Opportunity Commission, Justice Finn invalidated a federal regulation that had been used to restrict the political activities of a Customs employee who was also a union official. His Honour held it was contrary to the implied freedom of political communication in the Constitution.
But a similar argument was rejected by the High Court in Comcare v Banerji. While working at the Department of Immigration, Ms Banerji had anonymously tweeted criticisms of Australia’s immigration policies. Her tweets were strident, arguably even inflammatory. The department unveiled her identity and dismissed her. The Administrative Appeals Tribunal held the dismissal had been unlawful, as contrary to the implied freedom, and an appeal was removed to the High Court. The Court unanimously accepted the appeal and rejected Ms Banerji’s contention that her dismissal had been unconstitutional.
Justice Edelman’s judgment provided helpful guidance in seeking to delineate when political activity by public servants in their personal capacity will be permissibly subject to department oversight and, possibly, disciplinary action.
Although all circumstances are relevant, there are six factors of particular significance to any assessment of whether the relevant trust is sufficiently imperilled: (i) the seniority of the public servant within the APS; (ii) whether the comment concerns matters for which the person has direct duties or responsibilities, and how the comment might impact upon those duties or responsibilities; (iii) the location of the content of the communication upon a spectrum that ranges from vitriolic criticism to objective and informative policy discussion; (iv) whether the public servant intended, or could reasonably have foreseen, that the communication would be disseminated broadly; (v) whether the public servant intended, or could reasonably have foreseen, that the communication would be associated with the APS; and (vi) if so, what the public servant expected, or could reasonably have expected, an ordinary member of the public to conclude about the effect of the comment upon the public servant’s duties or responsibilities.
Banerji represents a highwater mark for government control of the out of hours political activity of public servants. We have been critical of the judgment, but it is – and seems likely to remain – the authoritative pronouncement on these matters for some time. To its credit, the APSC in more recent policy guidance has sought to adopt a more measured position – recognising the legitimate personal political activity of public servants while expressing caution at anything that might undermine public confidence in the impartiality of the APS.
Recent APSC guidance in relation to participation in the Voice referendum, for example, stated that public servants can participate in political campaigning ‘provided that you do so in a way that is consistent with your obligation to maintain public confidence in the integrity and impartiality of the APS.’ It then set out Edelman-esque factors – seniority, nexus between a public servant’s work and the issues, nature and tone of expression – and steps to mitigate risk.
Where to from here? Since Rose for the private sector, and Banerji for the public sector, the law has remained relatively stable. Rose represents a relatively employee-friendly position, while Banerji gives the federal government considerable latitude to control the private political activity of public servants. The law will no doubt continue to evolve, as the nature of employment changes.
In our view, common sense is critical – employees, in the public and private sector, are entitled to private lives and personal political opinions. Public servants cannot be, as it was famously said in Canadian case law, “silent members of society”. Employers, too, have a legitimate desire to protect their interests, particularly in the public sector, where public confidence is essential. A middle-ground exists, even if in particular cases, and in the heat of the moment, it may be hard to find.
John Wilson is the managing legal director at BAL Lawyers. Kieran Pender is an honorary lecturer at the ANU College of Law and a consultant at BAL.
For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.
1 Ronald McCallum, Employer Controls Over Private Life (UNSW Press, 2000) 21
2 AIRC 1592  (4 December 1998)
5 Newton v Toll Transport Pty Ltd  FWCFB 3457 (16 June 2021) 
6  134 FCR 334
7  HCA 23