A correspondent has drawn my attention to a program introduced on Radio National’s ‘Breakfast’ on 6 May (http://www.abc.net.au/radionational/programs/breakfast/background-briefing:-silencing-public-servants/7389700) and then broadcast on ‘Background Briefing’ (May 8 and May 10).   I haven’t listened to the full program but I have read the cases that they were discussing, that is Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 and Starr v Department of Human Services [2016] FWC 1460.    In both cases the applicants (Gaynor and Starr, respectively) were dismissed from their jobs because of comments that they made on social media in their private capacities but in both cases when it was clear, and admitted that, in Gaynor’s case he was a member of the Australian Army Reserve and formally a full time soldier, and in Starr’s case that he was an employee of Centrelink.   In both cases the tribunal (the Federal Court and the Fair Work Commission respectively) determined that the termination of employment was not appropriate.

The reason this has been brought to my attention was to ask whether it had implications for emergency service volunteers, ie members of a uniformed organisation who might take to social media to make comments both about matters of social interest generally, or issues relating to their service in particular.  (For related discussions see

Linking these decisions with volunteers and their rights isn’t obvious.  The difference is that these people were employees and there really is a difference between employees and volunteers but there will be some relevant overlap.

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370

Major Gaynor was a decorated army officer who had served in Iraq and Afghanistan.  He had transferred to the Army Reserve and been promoted to the rank of Major.  He embarked on a short lived political career nominating as a candidate for ‘Katter’s Australian Party’.   On a variety of social media sites (Facebook, Twitter, websites etc) he made comments where he was critical of the ADF’s moves to effect cultural change by inter alia, opening combat positions to women and allowing ADF members to march in uniform in the Sydney Gay and Lesbian Mardi Gras parade.  He expressed views that criticised both defence and the Australian government policies in Afghanistan and to allowing Muslim believers to enter Australia.     In those posts it was apparent that he remained a member of the ADF but in a reserve, rather than full time capacity.

Without going into all the details (of a 125-page judgment) Buchanan J found (at [277]):

…  the applicant’s commission was, in substance, terminated for two reasons.  The first was that he made public comments critical of the ADF while a member of the ADF.  Those comments were in contravention of Defence instructions but much more important to their assessment was their tone and content, which was viewed within the ADF, and by CDF, as wholly unacceptable.  The second reason was the applicant’s defiance of direct orders by his superiors, a circumstance which is anathema in military service.

This all occurred at the time of various scandals within the ADF and the then CDF’s famous speech on ‘the standard you walk past is the standard you accept’.  In dealing with the matter the CDF told Major Gaynor ([145]) that he, the CDF:

… was less interested in whether any “technical” breach of specific instructions had occurred and would place greater weight on whether the public comments revealed inappropriate attitudes and intolerance contrary to current ADF policies and demonstrated an irreconcilable conflict.

The beliefs expressed by Major Gaynor were, in the CDF’s view, incompatible with continued service in the ADF.

Major Gaynor challenged the decision to terminate his commission on many grounds to do with procedural fairness and the ability of the Army to issue orders that applied when he was not on duty and not in uniform.  The court rejected all of those grounds.  The court accepted however that service in the ADF did not deny a citizen the right to hold, and express, political views.   The Australian Constitution established a representative democracy so to allow that to function people have to be able to express their political views.   His Honour traced the case law on the implied freedom of political communication and said that there were three questions to be answered (see [240]).  They are:

  1. Does the law effectively burden the freedom of communication?
  2. If “yes”, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the … system of representative government?
  3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves a “proportionality test” to determine whether the restriction on freed political speech is justified.

Major Gaynor was terminated for the expression of views on matters of politics, at [248] Buchanan J said:

The subject matter of the applicant’s comments are ones upon which many people may differ for reasons of religion, morality, social conscience or practical politics.  I do not accept the suggestion … that some matters fell outside the field of political discourse.  They cannot be seen as falling outside, or even at the fringe of, political discourse.  The better view, it seems to me, is that they were all within that field of discourse, even when directed at personal insult or condemnation…  Even in that case, it appears to me that the applicant was attempting to make a public statement of a political kind.

So the termination, or the attempt to direct Major Gaynor to refrain from making such statements, was a burden on the freedom of political communication.  The need to maintain discipline within the ADF meant that the action of the CDF was to achieve a legitimate purpose but it was not, in his honour’s view a proportionate response.  At [285], [287] and [289] he said:

In my view, the burden on the exercise by the applicant of his freedom of political communication was considerable …  I cannot accept that the right to exercise that freedom was lost only because the applicant remained a member of the ADF  …

Membership of the ADF, while on service in one form or another, undoubtedly carries with it obligations of obedience to lawful commands, and all the rigour and restrictions of military service but it does not seem to me that it extinguishes either freedom of belief or, while free from military discipline, freedom of expression.  It may be the case that members of a full time regular service are rarely (if ever) free to publicly express opinions against the policies of the ADF or the decisions of their superiors but the same cannot always be said about members of Reserves.  Such persons are often not on duty.  They are private citizens, in substance, when not on duty and not in uniform… In my view, their freedom of political communication cannot be burdened at those times…

I conclude that the applicant’s commission was terminated because of the publication of his private views about political matters.  The fact that those publications were at variance with ADF or government policy, or were in terms of which some may strongly disapprove, or were critical of ADF policies or instructions, does not appear to me to be sufficiently connected with any legitimate legislative aim to displace the freedom of political communication implied in the Constitution.

The ADF has appealed this decision (Chief of the Defence Force v Gaynor [2016] FCA 311).

Starr v Department of Human Services [2016] FWC 1460

Mr Starr was an employee of the Department of Human Services (Centrelink) and had been for over 21 years.  He also engaged in discussion over many years on social media using a pseudonym.  On some of those discussions issues of Centrelink and government policy and action had been discussed and he had joined in those discussions, at time admitting that he was an employee of Centrelink.  Various criticisms of Centrelink and the government came to the attention of superior officers and his employment was terminated on the basis that his actions were contrary to the Public Service Code of Conduct and specific social media policies.   Some of his comments were particularly inappropriate, referring to Centrelink clients as ‘spastics and junkies’.

Mr Starr, having had the various policies brought to his attention admitted that his conduct did constitute valid grounds for dismissal but he sought a ruling that the dismissal was ‘unfair’.   Vice President Hatcher in the Fair Work Commission agreed. Many of the grounds for termination could not be justified, in particular one complaint was that he was bringing the social media team into disrepute when he kept pointing out that the information they were providing was indeed wrong.  It could hardly be grounds for dismissal if Centrelink was putting out information that they must have wanted people to know, but it was in fact and in law, wrong so another member sought to correct it!

The decision to dismiss failed to take into account Mr Starr’s many years of excellent service, there was no evidence that his criticism of Centerlink or its clients in any way affected his work or the way he dealt with clients which had been exemplary, he had taken steps to remove the offensive posts, there was no evidence that he intended to damage the reputation of Centrelink (the allegation that his use of a pseudonym was evidence of his knowledge and intention was rejected as he’d been using that for many years before any of the comments that were the subject of the complaint).

Discussion

So what’s the implication for volunteers who want to put comments on social media?  Like Major Gaynor volunteers agree to be part of an organisation and are subject to its discipline and authority (albeit not to the same extent a soldier is).   Like Major Gaynor’s reserve service, that membership is ‘part time’ and when members are off duty and out of uniform they retain the right to hold and express political views.    It is essential in a democracy that people are able to express them so people are free to express their views even if they are critical of the service to which they belong and even if it is apparent that they are members of the relevant service but not perhaps if they ‘tie’ their comments to that service or make those comments when serving.  A person who is identified as a member of the RFS could make comments on his or her web page, but not to the media on the fire ground when part of a strike force.

The most obvious exemplar is of course the former Prime Minister and still serving Member of the House of Representatives, Tony Abott.  He is a well-known member of the RFS and also, clearly political. But I’ve never seen him attempt to link the two even when news media took photos of him in his RFS uniform.  I don’t suppose he was overtly critical of the RFS when he was Prime Minister but even so he was clearly expressing political views and was a known member of the RFS.  The RFS couldn’t do anything to stop him on the basis that he was somehow linked to the RFS, but it might well have done so if, say, during an election he was seen wearing his RFS uniform to the polling place or when giving a political speech.

As for Starr’s case, that doesn’t say much given Mr Starr did admit his action did give grounds for dismissal.   Further the court noted that governments have more control over public servants than perhaps other employers.  Volunteers with the emergency services are not public servants even if they do volunteer for government agencies, but one can still imagine that a career in the RFS may be short lived if a volunteer were to get online after a fire and be critical of home owners that stayed to defend and used pejorative terms to describe them.

Finally employees really do have more rights than volunteers.  The law is concerned, perhaps over concerned, with economic interests and employment and the associated payment of a salary is important.  Volunteers can’t go to the Fair Work Commission and may have limited chances of a remedy if their volunteer service is terminated (see Natural Justice and the SES (September 28, 2015)).  If you volunteer to join an organisation and you don’t like its management or its policies, you’re free to stop volunteering in a way that an employee is not so free to stop working there.   It means the decision to terminate a volunteer’s service may not need quite the same balance as the decision to terminate a person’s employment and all that comes with having a job and an income.

Conclusion

One can’t really draw too much from these cases to volunteers.  I have no specific case where a volunteer has been disciplined for speaking out on social media with which to draw parallels.  The inference is that just because one is a member of an emergency service one retains the right to have political views and take part in the political process.  What is permissible, as in so many cases, is really a question of context and proportion.  Expressing views, even critical views, is ok but deliberately doing that whilst subject to the discipline of the service, ie when in uniform and on duty, is not.  The problem in Gaynor’s case was that the real issue for the ADF was that he was a member of the ADF, not that he did what he did when in uniform and on duty.  That was not enough for the court.  One might expect a similar result for a volunteer.

I don’t think that is inconsistent with my discussion in Political discussion on a NSW RFS closed Facebook Group (April 14, 2016).  In that case membership of the group was intended to be for RFS members so by virtue of being in that group one was, in effect, putting on the uniform, and therefore subject to the RFS service standards.

The issue for Starr’s case was the failure to properly balance the mitigating factors.  It says little about what can be said, but I suppose a volunteer with 21 years exemplary service might not expect to be terminated if he or she says something to the detriment of the service but which, on balance, is better dealt with by alternative means.  The volunteer, however, can’t go to the Fair Work Commission to have the issue tested.