Aug 21

How far can an employer Code of Conduct extend into their employees private lives?

The boundary between the private and professional is often the frontier of many ethical dilemmas in the workplace.

The clash between the private interests of the employee versus the interests of the employer organisation can give rise to questions about the right thing to do and whose interests take precedence.

Normally the private /public tension is played out around private interests intruding into working life. Employers can regulate procurement, put in place Codes of Conduct or to require employees to declare conflicts of interest to deal with these situations.

Increasingly the employees and employers face ethical dilemmas caused by employer policies impacting employees’ non-working life.

So, how far can employer policies that regulate standards of employee behaviour extend into the private life of employees?

High Court Decision of Comcare and Banjeri [2019] HCA 23

In the recent High Court Decision of Comcare and Banjeri [2019] HCA 23, the High Court dealt with the rather narrow question of whether the provisions of the Public Service Act 1999 (Cth) imposed an unjustified burden on the implied freedom of political communication.

The High Court held that it did not, with the result that the termination of the respondent’s employment with the Commonwealth was not unlawful.

Broadly the High Court dealt approvingly with the APS Code of Conduct and the decision validates the validity of the code

The facts of the matter were that Ms Banjeri admitted to sending over 9000 tweets during her employment at the Department of Immigration, which were critical and sometimes ‘intemperate, even vituperative’ of the Department.

The tweets were sent out under an ‘anonymous’ twitter handle which did not identify Ms Banjeri as an employee of the Department. The vast majority of the tweets were sent using her own device and outside of work hours.

The sections of the Public Service Act that were in question in the High Court decision were s10 dealing with APS values, s.15 dealing with sanctions and s13.

Section 13 of the Public Service Act sets out the APS Code of Conduct. The 13 subsections set out the duties of Australian Public Servants under the Code and are chiefly expressed as requirements to behave in the ways set out in the Code in connection with their APS employment.

Section 13(11) is expressed slightly differently:

(11) An APS employee must at all times behave in a way that upholds: (a) the APS Values and APS Employment Principles; and (b) the integrity and good reputation of the employee’s Agency and the APS.

The ‘at all times’ part of the decision is interesting here. Section 13(11) of the Public Service Act sets out the requirement that Australian public servants uphold the APS values and employment principles even when they are not at work, or not doing anything connected with their work. This is a long reach into the non-working lives of APS employees.

The High Court considered that the limits placed on APS employees were legitimate and necessary given the need to maintain and protect an apolitical public service and the role this plays in serving the national interest.

Justice Edelman acknowledged that this decision would ‘cast a powerful chill’ on the ability of those in the APS to make political comment.

6 factors for assessing risk

Justice Edelman did not consider that all political comment was prohibited by the interaction between the relevant provisions of the Public Service Act.

His Honour identified six relevant factors in assessing whether the relevant trust is sufficiently at risk:

  1. The seniority of the public servant within the APS;
  2. 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;
  3. The location of the content of the communication upon a spectrum that ranges from vitriolic criticism to objective and informative policy discussion;
  4. Whether the public servant intended, or could reasonably have foreseen, that the communication would be disseminated broadly;
  5. Whether the public servant intended, or could reasonably have foreseen, that the communication would be associated with the APS; and
  6. 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.

Implications for employers and employees

While not considered by the High Court, it seems unlikely that the same legitimacy would automatically be extended to employer Codes of Conduct outside of the public service.

However, the decision is an indication of the high-water mark of employer policies regulating private conduct of employees.

With this further push of workplace codes of conduct into personal lives the area for conflict between the employee and the private person extends and increases the need for employees to make careful and nuanced ethical decisions about their conduct.

How to ensure your organisation is supporting ethical behaviour

If you would like to learn more about practical strategies to ensure your organisation is supporting ethical behaviour, then register now for our lunchtime webinar on Thursday 22 August on this topic, presented by Worklogic Associate Director Kairen Harris and drawing on her wealth of expertise in this area.

About Jodie Fox

Jodie Fox  is passionate about helping people and organisations manage workplace conflict in a productive way. She specialises in workplace investigationsworkplace reviews and mediations to address and resolve complaints and foster a positive workplace culture. An experienced employment lawyer, she works with clients from a diverse range of industries providing pragmatic and strategic advice. She is a knowledgeable and engaging writer and speaker.

Please contact Jodie for an obligation free consultation via email or call (03) 9981 6558.