Tweeting about Employment Law

Social media and employment law have again been the focus of litigation in Australia. Michaela Banerji was a public servant in the Immigration Department. Ms. Banerji also operated a Twitter account, anonymously, upon which she posted comments, many of which were critical of Government Policy as well as individual Politicians. In proceedings before the Federal Circuit Court of Australia, Ms. Banerji, who was subject to disciplinary proceedings by her employer, argued that her comments on Twitter were protected by an implied right of freedom of political expression. His Honour Judge Neville rejected that argument and in finding that there is no unfettered right to freedom of political expression Judge Neville also commented that even if Ms. Banjeri was correct and such a right does exist that it does not provide a licence to breach an employment contract. The terms and conditions of Ms. Banerji’s contract of employment did expressly prohibit the sort of comments on Twitter that she had been posting.

Amongst other things this case very neatly illustrates the importance of employers maintaining an up to date policy in relation to the use of social media by their employees and for employees being aware of and conscious of the terms of such policies with regards to any posting they might make on the various social media platforms.

Electronic Communication - have you kept the appropriate records

The use of Email in particular has become a common practice for parties to a contract to communicate. Just because you have saved the email that you have sent, if it comes to litigation, have you kept the necessary records?

In the Electronic Transactions Act (Qld) 2001 it provides that you must keep, in electronic form –

·The origin of the electronic communications;

·The destination of the electronic communication;

·When the electronic communication was sent;

·When the electronic communication was received.

We find that people tend to dispute whether they have received a certain email, and when they received it. To make it easy for people to determine this, there are a few rules set out in the Electronic Transactions Act 2001. We have briefly summarised these for you. These rules will apply unless your contract says something different.

·The time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee (that is the recipient) at an electronic address designated by the addressee; or

·The time of receipt of the electronic communication at another electronic address of the addressee is the time when both -

oThe electronic communication has become capable of being retrieved by the addressee at that address and the addressee has become aware that the electronic communication has been sent to that address.

For more information refer to the Electronic Transactions Act (Qld) 2001 or speak to us.