Andrew Douglas: So can we get back onto the main topic I was pretending to talk about before? Which was privacy and out of work behaviour in Margetts’ case, which is a stunning case in some ways that the Queensland Public Service ever went with this.
Nina Hoang: Yeah, it’s very weird. I think it’s just ’cause it got some like, notoriety.
Andrew Douglas: I know, but it’s just a guy who’s chatting to a girl and he makes some comments about, you know-
Nina Hoang: Well he caught a, like a sex worker said her husband was a pimp, you know?
Andrew Douglas: Yeah, that was when they were breaking up, though.
Nina Hoang: Yeah.
Andrew Douglas: Yeah, there, you know-
Nina Hoang: So there are like, weird messages.
Andrew Douglas: I’ve still got one of my breakup messages. That wasn’t nice. I didn’t write it, by the way. I’m just saying to me, not nice.
Nina Hoang: Yeah, so a lot of messages where he exchanged outside of work, they were private messages and my understanding is those people made complaints to his employer and said he was representing the State of Queensland in disrepute and stuff like that. And they fully investigated it and everything and found that he did do those things. But where’s the connection back to work?
Andrew Douglas: Well, no, no, but some of the things they complained about were between consenting parties.
Nina Hoang: [Nina] Yeah.
Andrew Douglas: Never did he identify himself as representing or being part of work. And even when they were falling out and people were saying bad things to each other, it was still part of a relationship fight.
Nina Hoang: Yeah, so it was like so-
Andrew Douglas: And the woman-
Nina Hoang: unconnected.
Andrew Douglas: And the woman’s husband were not part of his business.
Nina Hoang: No, they weren’t patients or any connection to.
Andrew Douglas: Yeah, so look, not surprisingly the court said, and it was O’Neill who was the DP, had said-
Nina Hoang: Commissioner O’Neill.
Andrew Douglas: Commissioner O’Neill, sorry, said, “There is just no connection.”
Nina Hoang: Yeah, so I don’t think that this case goes against existing law. It’s just clarifying it.
Andrew Douglas: Yeah.
Nina Hoang: Because when you look at Rose and Telstra, there are very specific rules as to when out of hours conduct is applicable.
Andrew Douglas: Yeah.
Nina Hoang: And in this case, there was just no link whatsoever.
Andrew Douglas: Yeah, so let’s remember Rose and Telstra. The facts are not important, but the three tests are, the conduct when viewed objectively is likely to cause serious damage to the relationship between the employer and employee.
Nina Hoang: Mm-hmm.
Andrew Douglas: Okay, not here. The conduct damaged the employee’s interest. No. The conduct is incompatible with the employee’s duties and employ. Now, we saw Hunt and Kamilia, which was a indigenous association where a guy who…
Nina Hoang: He was engaging in domestic violence, right? Yeah.
Andrew Douglas: Domestic violence, but he was training kids on how-
Nina Hoang: Yeah, he was a counsellor.
Andrew Douglas: Boys.
Nina Hoang: Yeah.
Andrew Douglas: A counsellor on how not to be violent and he was locked up overnight. And he said, “Well, you can’t terminate me for that.” And they said, “But”-
Nina Hoang: It’s directly relevant.
Andrew Douglas: It goes to your relationship that you had with these people. It goes to the reputation of who we are, and it’s utterly incompatible with your job.” So that was a case that captured all three. The other part is online. We’ve got to remember that online comments are not protected per se, okay? Now remember, if you say online, “I think Anthony Albanese is a great guy,” and your employer happens to be a liberal guy who hates him, it’s not a workplace right you’ve asserted
Nina Hoang: [Nina] No.
Andrew Douglas: You’ve just made a public interest comment about your feelings, okay? So we know that you can use social media to say what you feel like so long as it’s not going to impact your employer forward in Rose and Telstra. But the other part is, you might have the highest privacy settings in the world, but if you do publish things that could affect your employer or employees of your employer, privacy law is pushed aside for that investigative process. Because the problem with social media profiles is, if I tell you I’m going to investigate you, you can delete it and therefore the evidence is gone. And that’s due to Savage and the Director of Health and Transport. So that gives you a bit of an idea where we are. Rose and Telstra draws a line and says, “If you cross this line, it becomes part of the ability of the organisation to discipline you.” It doesn’t become part of employment, but it draws you into position with discipline, and if it’s outside of that, it’s got nothing to do with your employment. And if you are just speaking your mind on an issue, no matter what you do and you’re not identifying yourself as speaking for or even impliedly speaking for an employer, it’s also outside of the disciplinary process. So I think a really good case.
Nina Hoang: Yeah.
Andrew Douglas: A really good case. Really helpful.
Nina Hoang: Good to increase clarity in this issue.
Andrew Douglas: But it’s nice to go back and look at what the law actually is repeatedly when we talk about a work behaviour because I don’t want anyone to think when you’re outside of work, you are free from discipline.
Nina Hoang: Yep.
Andrew Douglas: Why don’t we go onto the case study.
Nina Hoang: Mm-hmm. So, “Des was sick of work. He had been employed by Top Handy Carpenters, THC, for seven years. THC carried out major remedial works on old buildings for several local government authorities, councils. Des was, by nature, an old lefty. Every…” I thought you meant left-handed. Left-leaning views.
Andrew Douglas: Yeah, left-leaning.
Nina Hoang: Yeah. “Every labour day he could be found at Thornbury Hall, singing ‘The Internationale.’ He had”-
Andrew Douglas: Do you like that touch?
Nina Hoang: I don’t know what that means. What is-
Andrew Douglas: [Andrew] Well, it’s a Russian song.
Nina Hoang: Oh, okay.
Andrew Douglas: [Andrew] And it’s about communism, yeah.
Nina Hoang: Oh, okay.
Andrew Douglas: Yeah, sorry. Just thought I’d help you along with that.
Nina Hoang: “Had a particular dislike of the new MAGA-style right and never missed an opportunity to poke fun at them on his Facebook and Instagram profiles. On both profiles, he had a picture of his dog, Stalin, a large Russian Wolfhound rather than his own face.”
Andrew Douglas: [Andrew] Do you like him? I think he’s a good guy-
Nina Hoang: Yeah.
Andrew Douglas: this guy, he’s a funny man.
Nina Hoang: “Although Des did not identify himself by name on his profiles, there were photos of him with coworkers and posts by others joking with him about ‘burning the newly built right-wing house down.’ Des’s boss, Claire, received several complaints from newly elected councillors with MAGA-leaning views. They claimed Des’s posts were inappropriate and made it clear that unless THC dealt with him, they would ensure THC was removed from their councils’ preferred tender lists. Claire raised the issue with Des. Des explained that he had the maximum security settings on his accounts and insisted the councils could not have seen his posts. He said they were ‘just trying it on.’ Claire wrote back to the councillors asking for evidence. Their response was blunt. ‘Sack him or your contracts are dead.’ Claire spoke to Des again and told him his posts needed to come down.”
Andrew Douglas: All right, so the question, “If Claire says, ‘I have to sack you if they don’t back down,’ could Des seek an injunction to prevent the councillors from interfering with his contractual relationship with THC?” So interference with contractual relationships is a tort. It’s where somebody intentionally causes something to occur which breaches your contract of employment.
Nina Hoang: But don’t they have to be aware of your contract of employment?
Andrew Douglas: No, just the fact that you do have a contract.
Nina Hoang: Oh, okay.
Andrew Douglas: So the answer is yeah.
Nina Hoang: Really? You think that they’d win on it? He’d win on an injunction?
Andrew Douglas: I think-
Nina Hoang: For these comments?
Andrew Douglas: Well, all he has to show is an arguable case. And if he has the things they’ve said and emails and things that show that they are and that he’s been told he will be sacked because of it, he can then bring it.
Nina Hoang: But he would never do that ’cause it would cost-
Andrew Douglas: No, he wouldn’t ’cause it’d cost him $60,000.
Nina Hoang: Yeah.
Andrew Douglas: No, he wouldn’t.
Nina Hoang: And also, the council will just get rid of them anyway.
Andrew Douglas: Mm, well, council can’t get rid of the councillors, unfortunately.
Nina Hoang: No, no, as in like wouldn’t have them ’cause they’re causing reputational damage.
Andrew Douglas: Yeah, anyway-
Nina Hoang: But okay, I didn’t think they would be able to succeed.
Andrew Douglas: Yeah, I think it’s a good argument. It’s good fun anyway. “Is Des posting about political persuasions on his personal social media profiles a ‘workplace right’?”
Nina Hoang: Well, I think it depends because generally, no, but there is, under the discrimination provisions, political opinion, but you’d have to take the adverse action because of that, so him simply posting is not enough.
Andrew Douglas: Yeah.
Nina Hoang: It’d have to be, she’s terminating him specifically because of that.
Andrew Douglas: Yeah, so I think there’s a possibility of a workplace right. Okay, “Can Claire require Des to give access to, or allow a review of, his posts as part of an investigation?”
Nina Hoang: Yeah, I think so. To ask for it.
Andrew Douglas: You can ask for it, but it’s private.
Nina Hoang: Yes, but if it’s of like the privacy settings where people can get access to it. Although he’s like, “Oh, I’ve got the maximum security so they don’t know.” Clearly, people are upset from somewhere.
Andrew Douglas: Well, that’s right. So they can-
Nina Hoang: So it is accessible.
Andrew Douglas: Yeah, so it’s, she can give him a lawful and reasonable direction to disclose it.
Nina Hoang: Yeah.
Andrew Douglas: And if she’s already got copies and he says, “Oh, there’s none there,” then you’ve got dishonesty.
Nina Hoang: Yeah, so dishonesty. Yeah.
Andrew Douglas: Yeah. “If the posts reveal criticisms of existing councillors at councils for whom THC performs work, do they constitute misconduct under Rose and Telstra?”
Nina Hoang: So it’s not about his conduct, but there is a connection to the workplace.
Andrew Douglas: Yeah, conduct that damages the employee’s interests, so-
Nina Hoang: And reputation of this business.
Andrew Douglas: Yeah. So yes, they can.
Nina Hoang: Yeah, but I think it also depends on the extent of the criticism as well ’cause there is-
Andrew Douglas: It has to also be a connection to work, so they have to be able to at least implicitly say, “This is a person who identifies themself as a worker at this place.”
Nina Hoang: Yep.
Andrew Douglas: So here, we don’t know the evidence. He doesn’t… His Russian Wolfhound, Stalin, is there.
Nina Hoang: Yeah.
Andrew Douglas: But he does correspond with work colleagues who do identify him at the workplace.
Nina Hoang: Yep, and also, I think it depends on what specifically he says because public figures like councillors, remember we looked into this, there is a certain level where they are expected to just deal with criticism if it’s transparent and fair. But it can’t be like verbal abuse or like targeting at them specifically for things.
Andrew Douglas: All right, let’s go on. “If Des suffers a significant psychological injury because of the councillors’ conduct, could the councillors be liable under the s.23,” which is damage to another person, “and could the councillors and the councils be charged under Reckless Endangerment or Workplace Manslaughter?” And the answer is yes to all of them.
Nina Hoang: Yeah, because they’re covered under the OHS Act because they are like, similar to officers and also under their moral code of conduct as well.
Andrew Douglas: That’s right, so the answer is yes to all those. There you go. Oh, we’ve got another one. “Is Des…” I’ve got a whole lot more.
Nina Hoang: “If Des brings a successful workers’ compensation claim, could the insurer bring a recovery action against the councillors or their councils?”
Andrew Douglas: Well, certainly against the, yes, they could. So recovery action is a common way-
Nina Hoang: Against the councillors though?
Andrew Douglas: Yeah, because it doesn’t have to be an institution.
Nina Hoang: Oh, okay.
Andrew Douglas: It just has to be against the person who caused it.
Nina Hoang: I thought it had to be against an institution.
Andrew Douglas: No. “Could Claire direct Des to pull down the posts?”
Nina Hoang: Yes.
Andrew Douglas: Yes.
Nina Hoang: So there you go.
Andrew Douglas: Yeah, that’s a lawful and reasonable action.
Nina Hoang: Yeah. There you go, guys. That’s it. And Nina.
Andrew Douglas: Yeah.
Nina Hoang: See you later.
Andrew Douglas: See you in 2027.
Nina Hoang: Just remember what you’re leaving behind. Just understand that, and you have a wonderful time, okay?
Andrew Douglas: : Thank you.
Nina Hoang: Okay, see you later, guys.
Andrew Douglas: Bye, everyone.
Nina Hoang: Bye-bye.
Andrew Douglas: Give us a like.
