The price of changing conventions in public employee free speech – The Mandarin

By Alan J. McDonald

The conflicting cases of Morrison, Gaynor and Shindy have shown the problem with publicising personal opinion in the public sector. McDonald Murholme managing director Alan McDonald discusses the issue of free speech for public sector employees.

See below article for further details.

The price of changing conventions in public employee free speech – The Mandarin

by Alan McDonald, Managing Director of McDonald Murholme

OPINION: If you are going to allow people like David Morrison to speak out — and be rewarded for doing so — you can expect other government employees with more controversial views will do so too. 

The report that Australian of the Year David Morrison has a speaker’s fee of $15,000 per speech is the latest issue arising from his history as a public sector employee who spoke out in 2013.

When others have done so, it has built up a controversy about breaching the convention that public sector employees, especially in the military should not be speaking out or getting involved in controversy, even if it is personally lucrative for them do so.

In the recent case of Captain Mona Shindy — the Chief of Navy’s strategic advisor on Islamic Affairs, Shindy raised the issue of the rights of freedom of expression for government sector employees on controversial issues.

“Gaynor’s wrongful dismissal case shows that employer policies on social media cannot give unrestricted right to control an employees speech.”

Shindy published antagonistic tweets questioning foreign policy and retweeted comments made by controversial Islamic cleric Mufti Ismail Menk, resulting in the shutdown of her Twitter account.

Senior members within the Navy have deemed that Shindy’s tweets have overstepped the fine line between personal opinion and naval policy.

Shindy’s Twitter account was shut down as the association to the Navy was identifiable. The opinions published by Shindy ignited a public debate on Islam and were inconsistent with the apolitical nature of her role.

Most public sector employees are acutely aware of the convention not to speak out. Was Shindy trying to change that convention? Was she merely extending what David Morrison started in 2013 and landed him Australian of the Year?

Bernard Gaynor — a Major in the Defence Force — was dismissed after the publishing of anti-homosexual comments on social media. It has raised issues with social media use in Government sectors.

Gaynor’s account was easily recognised as a member of the Defence Force and was subject to the provisions in its social media policy. These comments were deemed as a breach to the following policy guidelines:

• Defence-related, user-generated, content that is shared over the internet via technologies that promote engagement, sharing and collaboration
• Defence’s official social media presences;
• Internet-based and mobile applications owned and operated by Defence (iArmy, internet-based Service games, iTunes/Android applications, etc); and
• All other activities conducted by Defence personnel on social media networks, where their connection to Defence is apparent or may be identified.

The Defence Force found these comments were in direct violation of its policy, including a ban on posting material on a social media platform.  It was deemed offensive towards any group based on personal attributes including race, religion or gender.

The decision to dismiss Gaynor was recently overturned by Federal Court Judge John Buchanan, on the basis that Gaynor’s comments were made in a personal capacity and protected by the freedom of political communication.

Clearly Justice Buchanan appears to have had a strong belief in right of a respected military man to speak, where he did not regard what was said as breaching the traditional public sector obligations.

Morrison relied on that principal in his speech. Judges often need to make a call on how a society changes. Justice Buchanan did not support extending political correctness through a social media policy.

The success of Gaynor’s wrongful dismissal case shows that employer policies about social media cannot give an employer an unrestricted right to control an employees speech. In an organisation such as the Defence Force this is complicated by the size of the organisation and its political nature, which does not exist in private enterprise.

While it may be that employees within government sectors do have varied restrictions than those in private enterprise — it is important for every employee to be aware of what their legal obligations are to their employer.

It is now apparent if you are going to allow people like David Morrison to speak out, you can expect people like Gaynor and Shindy to do likewise.

In all cases, aspects of what they said offended a sector of our community.

Morrison is rewarded, Shindy is punished, Gaynor reinstated.

Is that the price we want to pay for changing conventions?

Reference: The price of changing conventions in public employee free speech – The Mandarin, 5^th February 2016