Home Hybrid Learning Badmouthing the principal: A sackable offence?

Badmouthing the principal: A sackable offence?


Badmouthing the principal: A sackable offence?

With the intense and relentless pressures that Australian teachers are facing daily, the occasional meltdown and temper tantrum is to be expected. Much of the time, these frustrations are voiced directly to the principal (who may or may not be the object of a teachers’ anger), and fortunately, these disputes are often resolved on the spot without further mediation.

However, some staff – uncomfortable about the idea of confronting their boss directly – prefer to vent their spleen on social media (sometimes anonymously), and this is where the waters can get murky. Here, the boundaries between personal expression and professional conduct are increasingly blurred, making it crucial for educators to think twice about how they might want to voice their frustrations online.

Megan Kavanagh, a partner in Colin Biggers & Paisley’s employment and safety team, and her colleague Joel Beveridge, a Law Graduate at the firm, know this issue all too well, having dealt with many such cases over the course of their careers.

Below, The Educator speaks to Kavanagh and Beveridge about how school leaders can navigate this complex issue.

TE: What does industrial law say about what school staff can and can’t say about their principals on public forums? (i.e., can a school staff member be fired for badmouthing their principal on social media?).

Underpinning this question is the law of fiduciaries. The fiduciary duty underpins the employment relationship. It encompasses the duties to act with care, loyalty, good faith, confidentiality and requires an employee to act in the best interests of the beneficiary (e.g., employer).

Employees may breach this duty when they misuse social media to disparage their school and workmates, students, the board, parents or the principal, even where posts are made out of hours or anonymously. Such action can give rise to a valid reason for termination of employment, even in a ‘private’ group chat or via a more public post, provided there is sufficient nexus with employment (e.g. are there other employees seeing the message/post) and the posts.

Badmouthing the Principal and/or others via social media will likely also amount to a breach of applicable policies like Codes of Conduct or relevant IT/Social Media Policies.  A breach of an employer policy or procedure constitutes a valid reason for dismissal under the Fair Work Act 2009 (Cth).

TE: Is there a particular case study/legal case that you think is important school staff when it comes to being mindful of what to say in public forums when discussing their principal?

Badmouthing the boss (as mentioned above), where there is a connection to employment can provide a valid reason to terminate under contract, statute or policy.

In the case of Comcare v Banerji, the High Court ruled that the right of public servants to express political views is limited. In this case Ms Banerji made anonymous Twitter posts against Government immigration policy. She was terminated for breaching the Department’s Code of Conduct. The High Court upheld the decision.

In the case of Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097 provides useful guidance on when an employee’s offensive Facebook comments about managers might not provide a valid reason for termination. The guidance includes that dismissal may still be unfair, even where posts disparage an employer and employees if:

  • The employee believed (rather than confirmed) that Facebook was set to maximum privacy and comments only viewable by friends.
  • Comments were not intended to be seen by the managers criticised.
  •  Conduct occurred outside of work hours and workplace.
  • Some comments were made by others, and employee didn’t know how to delete them.
  • As an older worker, had limited understanding of Facebook communications and limited future employment opportunities.
  • Other employees involved were not disciplined.
  • Employee expressed genuine regret and remorse.
  • While objectionable, comments were deemed “childish” rather than destructive to the relationship.

Australia does not have an enshrined personal right to free speech (other than political free speech in limited circumstances). As such, where employees have fiduciary duties and sign up to comply with policies including Codes of Conduct then they also agree to limit communications to those which comply with Codes and other policies.  In short, employees need to understand that their comments may be discovered, and if the employer takes offence, the employee may face disciplinary action. Most schools have a media/comments policy. The best guidance is that if you are not authorised to say anything, then you should avoid making public comment which may be seen to be disparaging of your school and leadership team.

However, this restrictions on free speech need to be tempered against the operation of s541 of the Fair Work Act which prohibits termination on the basis of an employee’s political opinion and the risk of discrimination or breach of other industrial instruments.

The Folau case is a prime example. After Australia Rugby Union terminated Folau’s contract after he made homophobic comments on social media in breach of their Code of Conduct, Folau brought a claim under s772 of the Fair Work Act claiming the termination was in response to his expression of faith, so it was unlawful. The case was settled confidentially but gained significant media attention and contributed to significant changes at the ARU in terms of sponsors and leadership.

In another case which seems to go against the tide against employee free speech, in Professor Ridd’s case against James Cook University he successfully argued that his termination for academic misconduct (where he criticised the research of colleagues) was in breach of his rights under the Enterprise Agreement, which specifically provided for intellectual freedom of expression.

School employers must take care to ensure that they do not inadvertently take adverse action against an employee who exercises a political or religious opinion. They also need to be aware of the different instruments which might confer rights to free speech, including Enterprise Agreements.

To manage this risk, we recommend seeking advice.

TE: To what extent can school principals speak out against their employers on public forums?

With reference to ASIC v King [2020] HCA 4, a Principal may be considered an ‘officer’. Officers have obligations such as:

  • A duty to act honestly and in the school’s best interest.
  • Exercising due diligence and care.
  • Avoiding conflicts between the interests of the school and personal interests.
  • Exercising powers for their proper purpose.

Principals have fiduciary duties to the school they work for. Disparaging comments will likely breach both duties prescribed by Corporations and Charity regulations, will breach their obligations under Codes of Conduct and other policies and may be a breach of their fiduciary duty to the school.

It may be difficult for a Principal, or any member of staff to continue in a role where their conduct undermines the relationship of trust and confidence necessary to support ongoing employment.

There is no absolute right to unfettered free speech, even for principals.

TE: Looking ahead, what do you think are some other important factors for school staff to consider when speaking out against their colleagues and/or employers publicly, and how is industrial law evolving when it comes to what they can and cannot say?

If an employee has a concern, they should raise it through the school’s complaint management or whistleblower process. The court of public opinion is unlikely to be the right place to voice a personal view.

According to some commentators, recent decisions courts and tribunals show a distinct leaning in favour or employer rights to limit employee’s commentary about an employer and their operation through contract and policies, including their right to post on social media.  Where managerial prerogative to set the path of the school, to make decisions in support of the mission and values of the school, and where fiduciaries are required to act in the best interests of the employer, such limitations are consistent with that duty.

If a person feels strongly that they need to speak out they might not only face termination of employment but could be subject of defamation proceedings.

For these reasons employees need to carefully weigh up the cost and benefit of speaking up outside of the school.  Employers should seek advice when addressing public comments by staff to manage likely legal risk.

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