Employee conduct and codes of conduct, employers’ liability and employee out-of-hours conduct, employer in breach of privacy laws, redundancies and suitable alternative employment, workplace bullying and disciplinary action
Employee conduct and codes of conduct
“High Court finds that public service Values and Code of Conduct did not unjustifiably infringe on employee’s implied right to freedom of political communication”
Comcare v Banerji  HCA 23 (7 August 2019)
The High Court of Australia has rejected a public servant’s argument that the Australian Public Service (APS) Values and Code of Conduct imposed an unjustifiable burden on her freedom of political communication.
The employee was employed by the APS in 2006 in what would eventually be known as the Department of Immigration and Citizenship (Department). In 2012 she began publishing anonymous tweets using the handle @LaLegale. The employee published more than 9,000 tweets many of which were critical of the Department, other employees, departmental policies and administration, immigration policies of the Government and Opposition and members of Parliament.
In May 2012, the workplace relations section of the Department received a detailed complaint about the employee’s twitter activity and commenced an investigation. The investigation found that the employee had breached the APS Code of Conduct (which is part of the Public Service Act 1999 (Cth)), warranting termination of her employment. The employee was provided with the opportunity to respond to the investigation findings and the proposed sanction.
In November 2012, the employee applied to the Federal Circuit Court of Australia (as it is now known) seeking injunctions to prevent the Department from proceeding with its proposed termination of her employment.
The Federal Circuit Court rejected the employee’s application.
Eventually, in September 2013, the employee’s employment was terminated.
Following the termination of her employment, the employee lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) claiming she had suffered an injury arising out of the termination of her employment, being an aggravation of an underlying psychological condition.
The definition of “injury” in the SRC Act excludes injuries of the kind described by the employee if those injuries arose as the result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
In February 2014 the employee’s compensation claim was rejected by Comcare on the basis that the termination of the employee’s employment was reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. In August 2014, this decision was reviewed and confirmed by Comcare.
The employee appealed Comcare’s decision to the Administrative Appeals Tribunal (the Tribunal) and argued that the APS Code of Conduct, Values and guidelines impugned her implied freedom of political communication and therefore, the Department’s reliance on them to terminate her employment was not reasonable administrative action taken in a reasonable way.
The Tribunal agreed with the employee.
Comcare appealed the Tribunal’s decision, and that appeal was heard by the High Court.
High Court Decision
The High Court examined the APS Code of Conduct, Values and guidelines, relevantly noting that:
The APS Values included:
The APS is apolitical, performing its function in an impartial and professional manner.
The APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to diversity of the Australian public.
The APS Code of Conduct stated:
An APS employee must behave honestly and with integrity in the course of APS employment.
An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.
An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.
The guidelines stated:
Public comment includes comment made on political or social issues on the internet.
Department employees should not make unofficial public comment that is, or is perceived as; compromising the employee’s ability to fulfil their duties professionally and in an unbiased manner; so harsh or extreme in its criticism of the Government, a Member of Parliament or other political party and their respective policies that it calls into question the employee’s ability to work professionally, efficiently or impartially; so strongly critical of departmental administration that it could disrupt the workplace.
Irrespective of the forum, employees who post material online should assume that at some point, their identity and the nature of their employment will be revealed.
The High Court found that the employee was mistaken in her understanding of the implied freedom of political communication. The High Court said that the implied freedom applies to political communication as whole, as opposed to an individual right to free speech, and extends only so far as is necessary to preserve and protect the system of representative and responsible government.
The High Court found that, whilst the APS Code of Conduct, Values and guidelines did restrict the ability of an APS employee to engage in some forms of political communication, they did not infringe the implied freedom of political communication as a whole because they did not have a materially unjustified effect on political communication.
Specifically, the High Court held that the APS is entitled to set standards and expectations to achieve its objectives of maintaining an apolitical, skilled and efficient public service. In fact, ensuring that the APS remain apolitical, skilled and efficient is necessary to achieve the constitutionally prescribed system of representative and responsible government.
Edelman J noted that the APS Code of Conduct and Values did not preclude public servants from making political comment on social media, but rather created a boundary between acceptable and unacceptable expression of political opinion.
Gageler J commented that the requirement for an employee to uphold the APS Values applied only for so long at the employee remained employed by the APS.
In short, the APS Code of Conduct, Values and guidelines were held to be legitimate, suitable and necessary, and any burden they imposed on the implied freedom of political communication was justified.
Therefore, the Department’s conduct in terminating the employee’s employment was reasonable administrative action taken in a reasonable manner.
What can your business learn from this decision?
Employers are entitled to set reasonable standards and expectations for employees to protect their legitimate interests.
In this case, the APS was concerned with maintaining an apolitical, skilled and efficient public service in which public confidence was not compromised by employees being strongly critical of the Government, the Opposition, their policies or the administration of government departments.
In the private sector, the interests of an employer might include its reputation and standing in the eyes of the public, its relationships with clients or disruption to the workplace. Where an employer seeks to protect its interests, holding employees to account against a code of conduct and clear set of values will be reasonable.
Employers’ liability and employee out-of-hours conduct
“Supreme Court overturns finding that out-of-hours conduct was not work-related”
Attanayake v Simplot Australia Pty Ltd  VSC 387
The Supreme Court of Victoria has set aside a decision of the Magistrates’ Court that dismissed a workers’ compensation claim made by a worker who was sexually assaulted at a train station near the workplace. The Magistrates’ Court had found that the assault was not ‘work-related’.
Attanayake (the Worker) was a process worker for Simplot Australia Pty Ltd from October 2013 to August 2015. Shortly after she ceased work, she made a claim for compensation under the Victorian workers compensation legislation, claiming that she had developed anxiety and depression as a result of sexual harassment, bullying and threats during her work.
One particular allegation made by the Worker was that she had been sexually assaulted by a team leader at a train station near the workplace after she had finished work for the day.
The employer rejected the claim on the basis that none of the alleged incidents had occurred, and that the Worker had not sustained injury arising out of or in the course of her employment, or that employment was not a significant contributing factor to her injury.
The Magistrates’ Court dismissed the Worker’s claim in the first instance. It was not satisfied that any of the alleged incidents had occurred, except for the incident at the train station. In relation to that incident, the Magistrates’ Court found that it was neither work-related nor a cause of the Worker’s mental injury.
The Worker appealed this decision.
Supreme Court Decision
On appeal, the Supreme Court found that the Magistrates’ Court had erred on a number of counts, including most significantly, that it had applied the wrong test when determining whether the employment had caused the injury.
According to the Supreme Court, the decision at first instance was based on a determination of whether or not the sexual assault was ‘work-related’, as opposed to whether or not the injury had arisen ‘out of or in the course of any employment’ (which is the correct statutory test).
If the correct test had been applied, then it was open for the Magistrate to find that any injury which resulted from the train station incident arose out of the Worker’s employment, despite it having occurred outside the workplace and after work hours.
The Supreme Court noted that there were indications that the train station incident had its origin in the employment, being that:
there was no private relationship between the Worker and the team leader and that the Worker only knew the team leader as her workplace supervisor;
the incident took place close to the workplace and immediately after the conclusion of a shift, while the Worker was on her way home from work;
the Worker had telephoned a co-worker immediately after the incident rather than calling her partner or someone from outside the workplace; and
the Worker continued to work in the team leader’s presence and under his supervision after the incident.
In addition to the above, the Supreme Court found that the Magistrates’ Court had erred in failing to consider the medical evidence. It stated that, if it had done so, it was open for the Magistrate to find that the Worker had suffered an injury and that the injury arose out of her employment.
The Supreme Court set aside the initial decision and remitted it for rehearing.
What can your business learn from this decision?
Employers are well aware of the risks associated with unacceptable conduct by employees, particularly when there is a clear connection to the workplace, such as the location and the relationship between the people involved. If an employer is found to be vicariously liable for an employee’s actions, it can face significant penalties and adverse public exposure.
Employer in breach of privacy laws
“Employer ordered to pay compensation to employees for breaching privacy laws”
'QF’ & Others and Spotless Group Limited (Privacy)  AICmr 20
The Australian Information Commissioner (AIC) has found that an employer breached a number of privacy principles when it provided the names of its employees to a union.
In mid-late 2010, Cleanevent Australia Pty Ltd (a subsidiary to Spotless Group Limited (Spotless)) entered into an agreement with the Victorian Branch of the Australian Workers’ Union (AWU). The effect of the agreement was that the AWU would not seek to better the terms and conditions of its members for a period of three years, in exchange for payments of employees’ union fees up to $25,000 each year. The payments were to be made by Cleanevent on receipt of a list of employees and their associated member fees.
On 30 May 2011 and 20 April 2012, Cleanevent made payments to the AWU in accordance with the agreement and also provided to the AWU a list of 100 names of casual employees. Those names were added into the AWU’s membership roll. A third payment was made in March 2014 although no names were provided.
These events were the subject of investigation by the Royal Commission into Trade Union Governance and Corruption, and were discussed in the Final Report released in December 2015. The Royal Commission found that Cleanevent had “provided a list of employees to the AWU without regard to whether they were already members of the AWU and without regard to whether they wished to become members.”
The Royal Commission also concluded that none of those named employees were aware that membership was being paid on their behalf and therefore could not have authorised it.
When the Final Report was released, an employee of Cleanevent discovered that their name had been provided to the AWU. That employee subsequently complained to the AIC that Spotless had interfered with their privacy (along with the privacy of 13 other employees) in breach of the Privacy Act 1988 (Cth) (Privacy Act).
Spotless admitted that the disclosures occurred. However, it argued that the disclosures were made by employees who had acted without authority and, since becoming aware of the disclosures, had arranged for a review of its privacy compliance procedures and processes.
Spotless also relied on the employee records exemption in the Privacy Act, which exempts employers from having to comply with the Privacy Act when handling an employee’s personal information for a purpose that is directly related to the employment relationship.
The AIC was satisfied that Spotless had breached a number of the then-National Privacy Principles (now the Australian Privacy Principles), including:
NPP 1.3 – the obligation to provide notice, at the time of collecting information, to an individual of the purposes of collecting their information and the organisations to which the information will usually be disclosed;
NPP 2.1 – the obligation not to use or disclose personal information for a purpose other than the primary purpose of collection, unless it is related to the primary purpose, or the individual would reasonably expect or has consented; and
NPP 4.1 – the obligation to take reasonable steps to protect the personal information from misuse or loss, and from unauthorised access, modification or disclosure.
The AIC was not satisfied that the provision of the list of names attracted the employee records exemption as there was not a sufficient connection to the employment relationship. They were also not satisfied that the employees would have consented or reasonably expected those disclosures to occur.
The AIC concluded that Spotless ought to be held accountable for the breaches, noting “Those with ultimate responsibility for [Spotless’] affairs, including its obligations of compliance with privacy law, must discharge that responsibility properly”. It was noted that the disclosures occurred over time, and were reviewed and approved by both Cleanevent and Spotless, and amounted to “a disregard for its privacy obligations, and a lack of appropriate privacy controls”.
Spotless was ordered to:
issue an apology and pay a total of $60,000 compensation to the employees whose names were given to the AWU;
engage an independent reviewer to review its privacy compliance procedures, policies and processes (as well as those of its subsidiaries); and
undertake further independent assessments on the recommendations of the independent reviewer and report back to the AIC.
What can your business learn from this decision?
Employers need to exercise care in relation to the collection and use of personal information relating to employees. Some employers will be subject to the Privacy Act which places obligations on organisations in relation to the handling of personal information.
In order to minimise any risk of non-compliance, employers should ensure that their privacy policies are compliant with the Australian Privacy Principles and that their employees are aware of their obligations to maintain the privacy of employee personal information.
Redundancies and suitable alternative employment
“FWC finds that shift in employer’s product resulted in suitable alternative employment options”
United Voice v Laminex Group Pty Limited T/A Laminex Cheltenham  FWC 4104
The Fair Work Commission (FWC) has found that changes to an employer’s operations resulted in redundant roles but did not trigger retrenchment entitlements as claimed by employees.
Suitable alternative employment was available to the employees whose roles were redundant and so they had no entitlement to payment for retrenchment.
The employer operates a plant in Victoria manufacturing and warehousing high pressure laminex (benchtops).
One step in the process of manufacturing laminex is the treatment of paper that is later pressed onto board. The employer employed 10 employees who were trained in the treating process and operated the two “treaters” (machines) used in the manufacturing process. The employees were multi-skilled and also performed work in other parts of the employer’s operation when not working on the treaters.
The employer had experienced a decline in the demand for its high pressure laminex and so made the decision to make changes to its operation, in particular, manufacturing a new product called “compact laminex”.
Compact laminex does not require the use of the treaters and so the employer planned to phase out the treater work. The employer proposed that the 10 employees who worked mostly on the treaters would continue working at the employer’s plant and perform work in pressing. Seven of the 10 employees already had training in pressing and had previously worked in pressing when not required in treating or to cover absences.
The employer intended to phase out the treaters by December 2019 at which point the treating employees would exclusively work on pressing.
The employees claimed that their roles were redundant and they should therefore be offered redundancy packages. United Voice represented the employees in the FWC.
United Voice submitted that the jobs of the treaters were no longer required to be performed by anyone because of the employer’s decision to eliminate the treating process. It submitted that the alternate positions offered to the employees in pressing were significantly different and, therefore, under the applicable enterprise agreement, the employees should be offered the option of retrenchment.
The FWC considered the applicable enterprise agreement and the definition of redundancy and retrenchment.
The FWC held that a retrenchment occurs when there is a dismissal due to the redundancy of a job. In this case, there was to be no dismissals as the employer still required all of the affected employees. Accordingly, there were no retrenchments.
The FWC also considered whether any of the jobs were in fact made redundant and if they were, whether suitable alternative employment was offered.
The employer submitted that the roles the employees would be performing in future were the same roles they currently held as “Production Employees” and “Team Leaders” under the enterprise agreement.
The FWC found that the employer was conflating the concepts of classification under the enterprise agreement and the actual jobs the employees were performing. The FWC found that jobs of the employees were redundant because they were no longer required – the treaters would be phased out and so the duties and responsibilities of the employee’s jobs tied to the treaters would be redundant. This redundancy would occur notwithstanding that the employee would retain the same enterprise agreement classifications in their future roles.
On finding that the roles were redundant, the FWC then considered whether the employer had found suitable alternative employment for the employees. The FWC found that, based on the evidence before it, there was not a significant difference between the pressing and treating positions and so there was suitable alternative employment available to the employees.
On this basis, the FWC held that the employees had no entitlement to retrenchment pay under the enterprise agreement. The United Voice’s application on behalf of the employees was dismissed.
What can your business learn from this decision?
Employers are entitled to make changes to their operations as they see fit. When these changes involve a change to an employee’s duties, that may trigger a redundancy. However, redundancy of a role does not automatically mean the end of the employment relationship with redundancy pay.
Where an employer can identify suitable alternative employment into which the employee can be redeployed, then there will be no entitlement to redundancy pay.
Workplace bullying and disciplinary action
“Employees fail to obtain interim orders to prevent dismissal”
In two separate matters, the Fair Work Commission (FWC) has declined to make interim orders sought by employees to prevent their employer taking further action pending the determination of their stop-bullying applications.
In the first matter, Applications by Hien; Sankey; Soy  FWC 4274, St Vincent de Paul Society (St Vincent de Paul) had issued show cause letters to each of the employees in October 2018 in relation to allegations of misconduct or poor performance.
Shortly after receipt of the show cause letters, the employees made allegations of bullying behaviour against St Vincent de Paul and six of its managers. An internal investigation found that the allegations were unsubstantiated.
In March 2019, the employees filed stop-bullying applications with the FWC.
The employees also filed an application seeking urgent orders that St Vincent de Paul be restrained from dismissing any of the employees until the determination of the stop-bullying applications. They contended that the disciplinary processes were essential components of the allegations of bullying behaviour.
In response, the FWC made orders for an independent third party to conduct an investigation into the allegations of bullying behaviour. St Vincent de Paul was also restrained from taking any further action in relation to the disciplinary process until they had received and considered the further report. This further report again found the allegations of bullying to be unsubstantiated.
Notwithstanding these findings, the employees again pressed for urgent orders restraining St Vincent de Paul from dismissing them until the stop-bullying applications were determined.
The FWC declined to make the interim orders sought by the employees.
It found that the allegations of misconduct or poor performance were unconnected and unrelated to the nature of the bullying allegations, which had been found to be unsubstantiated by two investigation reports.
The FWC also noted that, even if the employees were dismissed, there was no automatic rule that their applications would also be dismissed.
The FWC therefore considered the orders sought to be oppressive and an unreasonable intrusion into management’s legitimate right to pursue disciplinary outcomes against employees.
Similarly, in Richardson v Optus Retailco Pty Limited, Cassidy and Savvidis  FWC 5441, the FWC also declined to make an interim bullying order restraining the employer from taking further disciplinary action, including terminating his employment.
Mr Richardson was employed as an assistant manager in an Optus retail store. He alleged that he was bullied by his store manager and area manager and, in April 2019, applied for orders to stop bullying at work with the FWC. Mr Richardson alleged that the managers bullied him including by commencing a performance management process against him in relation to false performance issues.
As the matter progressed before the FWC, another employee lodged a formal complaint against Mr Richardson alleging physical and verbal bullying in the workplace. The parties agreed that Optus should engage external lawyers to investigate Mr Richardson’s complaint and to separately investigate the complaint lodged by the employee against Mr Richardson.
In June 2019, Mr Richardson was advised of the outcomes of the two investigations. In short, it was found that Mr Richardson’s complaints were unsubstantiated while the complaint of bullying against Mr Richardson was found to be substantiated.
Optus later wrote to Mr Richardson commencing a disciplinary process in relation to his alleged misconduct and invited him to provide a response.
Mr Richardson applied for interim orders to:
refrain Optus from taking further steps to finalise the investigation against him, imposing any disciplinary penalty on him in relation to the investigations, or terminating his employment; and
allow him to return to his normal work.
The FWC held that the circumstances did not justify the making of the orders and that it would be inconsistent with the legislative purpose of the anti-bullying jurisdiction.
The FWC noted that there was no possibility of a future risk of bullying against Mr Richardson. Firstly, Mr Richardson was suspended pending the outcome of a disciplinary process and secondly, if Mr Richardson’s employment was terminated at the end of that disciplinary process, he would not be at work. Alternatively, the FWC noted that if Mr Richardson’s employment was not terminated, Optus had agreed to transfer him to another retail store so he would not have contact with the managers.
The FWC was also alive to the issue of the anti-bullying jurisdiction being used to prevent reasonable disciplinary action, noting that:
The issuing of an interim order needs to be considered against the lawful rights of an employer becoming subservient to an anti-bullying application where such applications are made in an attempt to prevent, circumvent or frustrate an employer’s rights. An anti-bullying application is not a shield from disciplinary consequences in the event of any lawful findings of serious misconduct on the part of the applicant.
The FWC found that if Optus proceeded to terminate Mr Richardson’s employment prior to the hearing of the substantive application, this was the “nature of the jurisdiction”. The purpose of the anti-bullying jurisdiction was to facilitate safe working relationships and to stop bullying at work and that Mr Richardson had other legal options if his employment was terminated.
Accordingly, the FWC declined to make the interim orders as sought by Mr Richardson.
What can your business learn from this decision?
The FWC’s comments in these interim decisions are in line with its remarks in its recent decision of Karki  FWC 3147 – that the FWC’s stop-bullying jurisdiction should not be used to prevent, delay or deflect justifiable disciplinary outcomes.
It provides further assurance to employers that they are entitled to pursue disciplinary outcomes against employees notwithstanding the claims that employees may make to try to defer or distract from the legitimate process.
Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on firstname.lastname@example.org.
Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
When setting a penalty for breaches of work health and safety obligations, the Courts will look at the need for specific deterrence against the offender and also the need for general deterrence for employers and the particular industry.
While the internet has made the world seem smaller and more connected, the ability to have unlimited information at our fingertips carries a risk for employers that what is found on the internet will be used to unlawfully discriminate against people in their employment.
In 2010, the model Work Health and Safety Act was endorsed, followed by the model WHS Regulations and model Codes of Practices. Other than Victoria, most Australia State and Territories have now adopted the model WHS laws in their jurisdictions.