Banerji and Comcare (Compensation)

This matter concerned an appeal by Ms Banerji against a decision by Comcare to refuse her claim for workers' compensation for an adjustment disorder characterised by depression and anxiety. The claimed condition arose as a consequence of the termination of her employment with the Department of Immigration and Border Protection. The central dispute was whether the termination of her employment constituted reasonable administrative action taken in a reasonable manner, as required by the Safety, Rehabilitation and Compensation Act 1988, or if it fell outside this exclusion due to the implied freedom of political communication.

The Administrative Appeals Tribunal was required to determine whether the termination of Ms Banerji's employment was reasonable administrative action taken in a reasonable manner, considering the exclusion in section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988. This determination hinged on whether the termination was affected by the implied freedom of political communication, which is a constitutional consideration. The Tribunal also had to consider the obligations of public servants under the Public Service Act 1999, including the APS values and the Code of Conduct, in the context of Ms Banerji's use of social media.

The Tribunal found that Ms Banerji had, on one occasion during business hours, retweeted a comment critical of her employer. While acknowledging the extensive nature of her tweeting and her general assiduousness in avoiding posting during work hours, the Tribunal accepted the documentary evidence and Ms Banerji's earlier written concession that this specific incident occurred. However, the Tribunal ultimately concluded that this finding did not alter the outcome of the case. The Tribunal's reasoning focused on the legal principles governing reasonable administrative action and the limitations on public servants' implied freedom of political communication, particularly in relation to their duty of fidelity and loyalty to the APS.

The Tribunal set aside the Comcare decision.