The win won’t
eradicate the sustained personal stress or financial difficulties that such an unfair
dismissal imposed – still it was pleasing see this tweeter's actions recognised as the right to freedom of political expression.
Hopefully Comcare will not be so bloody minded as to appeal the judgement,
The Sydney MorningHerald, 18 April
2018:
A former
Immigration official sacked over tweets critical of Australia's asylum seeker
policy has won a fight for compensation, after an appeals tribunal found her
dismissal was unlawful and described government efforts to restrict anonymous
comments from its employees as Orwellian.
The decision on Monday
will redirect scrutiny to the Immigration Department's dismissal of Michaela
Banerji for tweeting criticisms of detention policies, and challenges
Australian Public Service rules stopping public servants from expressing their
political views on social media.
Ms Banerji took the
government to the Administrative Appeals Tribunal after federal workplace
insurer Comcare refused to compensate her for the psychological condition that
developed after she was sacked in 2013 over tweets from a pseudonymous Twitter
account.
The tribunal overturned
Comcare's decision and found she suffered depression and anxiety that could be
classed an injury under federal compensation laws.
Ms Banerji was working
in the Immigration Department when co-workers learnt she was behind the tweets
railing against the government's treatment of asylum seekers.
She lost a
high-profile attempt to stop her dismissal in the Federal Circuit
Court in 2013, a decision seen as likely to curtail other bureaucrats' use of
social media when judge Warwick Neville found Australians had no
"unfettered implied right (or freedom) of political expression".
In a case that Ms
Banerji's lawyer Allan Anforth from Canberra Chambers said could have
implications for other public and private sector employees, the AAT said
Comcare's refusal was based on a dismissal that was unlawful because it
intruded on her right to free political expression.
Her tweets, made from the Twitter handle @LaLegale, were anonymous and did not
disclose confidential departmental information, but an internal investigation
in 2012 found she had breached the code of conduct for government employees.
In a submission to the
tribunal, Mr Anforth said the tweets were posted from her own phone and, in
most cases, outside work hours.
The appeals tribunal
found the Immigration Department itself had identified Ms Banerji after she
posted anonymously, and said guidelines stopping public servants from publicly
criticising the government should not be applied to anonymous comments.
"A comment made
anonymously cannot rationally be used to draw conclusions about the
professionalism or impartiality of the public service," it said.
"Such conclusions
might conceivably be open if the comments were explicitly attributed to, say,
an unnamed public servant, but that hypothetical situation does not apply to Ms
Banerji."
The tribunal found Ms
Banerji appeared to have taken care not to have used information which
could only have been in her possession as an Immigration employee.
It lashed the government
decision to sack her, saying it "impermissibly trespassed upon her implied
freedom of political communication", and "with a law only weakly and
imperfectly serving a legitimate public interest".
"The burden of the
code on Ms Banerji’s freedom was indeed heavy – the exercise of the freedom
cost her her employment.
"In our opinion,
there is no significant justification available to the employer here for the
law which exacted that cost."
Comcare is considering
the tribunal's decision. The findings could be appealed in the full Federal
Court…..
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