In Daniel Starr v Department of Human Services,1 Mr Starr had been employed by the Department of Human Services (Department) as a frontline Centrelink customer service officer for more than 20 years before his dismissal for posting negative, inappropriate, and derogatory comments about the Department and its customers on social media platforms outside of working hours.
Following an extensive investigation, the Department found that Mr Starr’s comments, which had been made using an alias and included describing customers as “spastics” and “whinging junkies”, and declaring that he was “embarrassed” to work at Centrelink, were in breach of section 13 of the Public Service Act 1999 (Cth) (Public Service Act), including the Australian Public Service (APS) values and Code of Conduct, and the Department’s social media policy (Policy).
Consistent with the requirements of the Public Service Act, the Policy provides that while employees have the right to make public comments, they must be made in their private capacity as members of the community, rather than employees of the Department, and that any criticism of the government or departments must not bring the APS into disrepute or lead the public to suspect that the employee is unable to perform their duties impartially.
Mr Starr’s employment was terminated for serious misconduct, but he was provided with four weeks’ payment in lieu of notice. Mr Starr filed an unfair dismissal claim against the Department with the Fair Work Commission (Commission), alleging that his dismissal was harsh, unjust or unreasonable.
Restriction on political activity by public servants outside of working hours
In the decision, the Commission gave detailed consideration to the Department’s ability to restrict employees from engaging in political activity in their personal capacity. In doing so, his Honour, Vice President Hatcher held that, although the conduct of public servants comes under greater scrutiny due to their employment under the Public Service Act, this does not curtail the implied constitutional right to freedom of political communication.
His Honour considered that the correct interpretation of the Public Service Act is not to require public servants to be apolitical at all times outside of working hours — rather, the requirement of political impartiality is restricted to the exercise of an employee’s public service functions. While there may be circumstances where the public expression of political views by public servants in their private time might compromise their capacity to perform their duties impartiality (and therefore breach section 13 of the Public Service Act), his Honour found that for the vast majority of public servants, the robust expression of political views and criticism of the government outside of work would not have an adverse impact on the performance of their duties.
Comments which were not a valid reason for dismissal
The Commission rejected the Department’s argument that, in responding to and confronting posts by a member of the Department’s social media team regarding the length of time it takes for claims to be processed, Mr Starr had demonstrated a lack of integrity or behaved unethically. While it considered that there would have been a basis for finding that Mr Starr had acted dishonestly and unethically if his comments had been knowingly false, the evidence established that the processing times referred to by Mr Starr were correct.
The Commission also rejected the argument that in doing so, Mr Starr had used inside information for personal benefit, on the basis that the processing time-frame was readily disclosed to customers, and had been posted by the social medial officer (albeit inaccurately). Furthermore, his Honour was satisfied that Mr Starr had been acting out of frustration that the social media officer was circulating incorrect information, rather than for his own benefit or advantage.
Vice President Hatcher rejected the view that Mr Starr’s comment that the Department has “our share of utterly useless people” and criticism of management was disrespectful to fellow employees. His Honour considered that, because the comments were expressed in the abstract rather than directed at any particular person (and related to a Department which has thousands of employees), and were made in the context of Mr Starr responding to and rejecting another person’s comment that public servants were “deadbeat leeches”, Mr Starr’s comments were not sufficiently serious to constitute a valid reason for dismissal.
Comments giving rise to a valid reason for dismissal
However, his Honour found that a number of Mr Starr’s other comments constituted a valid reason for dismissal. Specifically, the Commission found that by commenting that Centrelink’s processing times were “utterly disgraceful” and that he was “embarrassed to work there”, Mr Starr had behaved in a way that did not uphold the Department’s good reputation. Vice President Hatcher considered that these comments were excessive and would give the impression that the Department was being run in a scandalously ineffective manner.
The Commission also found that Mr Starr’s comment that a very large proportion of customers seeking an exemption from Newstart job-search requirements because they suffered depression were not genuine was expressed in such excessive terms that it could raise doubts as to whether a depression sufferer would be treated fairly and impartially by the Department. Accordingly, in making these comments, Mr Starr failed to uphold the Department’s integrity and reputation, in breach of the Public Service Act.
Vice President Hatcher also found that it was entirely inappropriate for Mr Starr to refer to customers as being “spastics and junkies” and that the posts referring to customers in this derogatory way provided a valid reason for his dismissal.
Outcome—dismissal disproportionate to the gravity of misconduct
However, despite finding that there was a valid reason for dismissal, Vice President Hatcher found that the dismissal was harsh and disproportionate to the gravity of Mr Starr’s misconduct. In doing so, the Commission had regard to:
- the fact that the comments bore no relationship to Mr Starr’s actual work performance, on the basis of evidence that Mr Starr always treated the Department’s customers appropriately and with respect when at work;
- the lack of evidence that the Department’s reputation was actually damaged or that anyone actually formed an adverse perception of the Department’s impartiality;
- the fact that Mr Starr clearly and genuinely expressed remorse and regret for his conduct, and recognised that what he had done was seriously inappropriate; and
- the particularly harsh consequences of the dismissal for Mr Starr, given his length of service with the Department and lack of qualifications.
On the basis of these findings, Vice President Hatcher reinstated Mr Starr to his employment and made orders for the deemed continuity of his employment. However, his Honour declined to make any order for lost remuneration, on the basis that this significant financial loss would operate as a suitable sanction for Mr Starr’s conduct, as well as serve as a signal to him and other employees that the type of conduct Mr Starr engaged in is unacceptable and not condoned by the Commission.
Bottom line for employers
While the scope of employer control over the private conduct of employees is greater in the case of public servants whose employment is regulated by statute and codes of conduct, it remains essential that only serious breaches of statute or policies giving effect to statutory requirements are relied upon as a reason for dismissal.
In determining whether an employee’s out of office conduct may breach public sector values, it is critical to specifically identify how such conduct might impact on the performance of the employee’s duties, including:
- whether the conduct has any impact on or bears any relationship to the employee’s actual work performance;
- whether the conduct causes any actual detriment to the employer;
- the circumstances in which the conduct occurred e.g. if it was “responsive” or “situational”, as opposed to deliberate action taken with intent to damage the employer’s reputation; and
- the frequency and duration of the conduct.
- In addition to a strong code of conduct and social media policy, further considerations must be taken into account when disciplining employees for conduct that has occurred outside of working hours.
- In determining whether an employee’s out of office conduct may breach a code of conduct or policy, it is critical to identify specifically how such conduct might impact on the employee’s performance of their duties.
- However, out-of-hours conduct which constitutes criminal conduct, or conduct which is particularly grave or serious, may weigh in favour of determining that disciplinary action (including termination) is appropriate, even if the conduct is not connected with the employment.