Employment Law - Banerji v Bowles FCCA 1052 - Essay Example

Employment Law Students Name Institution Date INTRODUCTION One of the legal aspects which have seen immense evolution in the global legal parlance regards the Employment Law. This is a relatively broad area which includes the duties of the duties and responsibilities of both employers and employees as well as defines the legal framework under which they operate. Different countries have different ways o applying these laws. For example, the evolution of Employment laws in Australia may differ with those existing in the United States depending on the Acts of parliament, legal precedents among many other factors. However, one legal question n which has been outstanding corresponds to the porous boundaries existing between the private and the public life of an employee (Corney 2014). There have been great changes in the duties and roles of both employers and the employees causing an effect on the nature of public and private lives of the employee, This essay intends to discuss the legal question regarding the nature of such private and public life existing among the employees. Besides, it intends to discuss on the various duties of both employers and employees and changes which have happened in duties of the former in regards to the growing demands of the latter. The study will focus on a recent Australian case law which has legal implication in understanding the employment law and changes in the law. Essay Question: The use of Social Media by the employees while in their regular workplace The social media is one of the communication tools that have become quite prominent in the modern days. People prefer to engage in the use of this tool due to its ability to attract viewership and also due to its ease of communication. People engage in the use of social media to make personal comments and posts on either personal life or in attempting to address and issue within the society. Therefore, it has become useful in the modern times and has further received great attennt9ion. The modern social media accounts can be accessed through the personal devices such as phones and can also be accessed through the computers. For a person with the workstation, there are high possibilities of gaining aces into any of the social media platforms such as Facebook and twitter amongst others, using the office computers (Toh & Quinlan 2009). The internet supply in some organizations within Austral have the latitude of allowing the user o access any social media site and make such personal comments on these sites. There has been a growing concern on the role of employers in regulating the use of the social media platforms among the employers and also on the law regulating the comments and posts made the employers. Ion a normal set u, an employee has a private side of life enabling him or her make any personal contribution or comment on any respective social media platform. People are entitled to their personal opinions and therefore are free to make them through their social media accounts provided they do not contravene the communication rules existing in the country. However, there has been a concern in the use of these platforms while at the workplace to make contributions and opinions on the activities within the workplace. The employers have increasing taken control of the kind of information that passes through the office equipment which is being used by the employees (Kaufman & Taras 2016). Therefore, there has been a conflict between the personal life and the public life of the employees in regards to the use of social media accounts as explained by the case law below; Case Law: Banerji v Bowles [2013] FCCA 1052 The case law above concerns the application made by Ms. Banerji who was working as a public officer within the Department of Immigration and Citizenship (DIAC) in Australia. The case concerned the accusation raised by the employer DIAC in connection with the inappropriate use of the social media platform. The investigation dome by the employer found Ms. Banerji’s inappropriate comments that she made on her twitter account under the user name; “@LALegale.” Some of the policy issues which she sought to address in her comment concerned the immigration policies in Australia, views on the employees of the department and also on the policies of the department concerning security issues in Commonwealth Immigration Detention Centers (Corney 2014). The post was followed by about 700 followers, and this seemed to breach the policies in the organization. Whereas the applicant made the statements on her personal motion, expressing her personal views as part of her personal life, the organization argued that the comments were of a public nature and fell outside the auspices of the organization’s policies. The organization made a recommendation of terminating the employment of Ms. Banerji on the grounds of breaching the policies and the regulation of the organization. Ms. Banerji responded by making an application in the court seeking an interlocutory injunction. She argued that the recommendation was molded by her earlier exposition of the bullying perpetuated by her manager. Further, Ms. Banerji argued that relying on these tweets amounted to the breach of her personal freedom and rights of expression (Althaus et al. 2012). Summary of findings Held: The court made a declaration on 9 August 2013 rejecting the application made by Ms. Banerji. The court argued that there existed no unfitted rights to make political comments and also denied the interlocutory relief sought by the applicant. The court premised its holding on the provisions of APS Code of Conduct, section 13 of the Public Service Act 1999 that clearly argues that every employee needs to act with honesty and integrity. The section further argues that the employees are bound to prevent any conflict arising between them and their duties in the company. The court further denied the interlocutory injunction to the application (Quinlan & Johnstone 2009). Duties of employees in accordance with the case law The employees have certain duties which are specific to them by virtue of ascribing to the policies and views of their employers. The following are some of the duties Honesty and integrity: the employees are bound by the duty of remaining honest and observing utmost integrity while at the workplace. The employers have the right to ensure that any employee observes these two critical duties which also help in defining the kind of duties they perform. Honesty is a duty expected by the employers so as to ensure that the employees are true to their duties and also keep the confidential information secret without disclosing to the public. The private life of the employees need not go against the duties of integrity and honesty especially in addressing key information about the organization. In the case law above, the applicant never observed the duties of honesty and integrity by disclosing some of the pertinent issues of the organization to the public. She used the social media platform to express her private opinion on some of the issues within the internal realms of the organization and also engaged in political views which are against the duties of the organization. Therefore, this placed the applicant at variance with the management of the organization compelling the courts to rule in favor of DIAC (Sternlight 2003). Observing the policies of the organization; the other duty of employees regards the need adhere to the prevailing codes of conduct, regulation, and practices outlined in the organization. Every company or firm usually has got a set of practices and codes of conduct which usually help in regulating the activities of every person within its borders. The existence of these policies is meant to provide a framework for harmonious existence of every party in the organization and also to ensure that people focus on the core objectives and service delivery. For example, DIAC operates within a specific set of regulations which binds every employee and the employer. Acting outside these policies implies contravention of the existing regulation in the organization (Yamada 2002). For example, the action of the applicant in the case law above is seen as going against the traditions, policies and the regulation of DIAC. This explains why the organization made the initial recommendation for termination of the employee on the basis of contravening the existing policies and codes of practice binding every member. The use of the social media to express personal opinions and also address political views concerning the employer was seen as against the regulation of the organization and therefore formed the basis of termination of the contract (Corney 2014). Therefore, the Employment law in Australia provides that the employees have a duty to respect the regulation of the organizations and act within their boundaries. The duty of acting loyal to the employer; the contract of engagement between the employer and the employee provides for certain terms of meeting these different parties. Every party is expected to do his or her part of the contract. For example, the employer needs to ensure that the employees are well and timely remunerated while the employees need to act loyal to their employers. Loyal action means following the dictates of the employee and observing diligence to the duties while within the workplace. Suppose the practice and observance of the private life has a potential of going against the dictates of the organization, then the organization needs to be superior. In any case, the private life is limited to the extent that it contravenes the guidelines and laws ascribed tool by an individual such as the employment laws (Stewart 2008). Therefore, every employee in Australia is bound to the duty of remaining and acting loyal to the assignments and duties given by the employer. This in turn makes the employer respect him or her part of the contract, and all these promote a harmonious existence within the workplace. Duties of the employer Duty of safeguarding the use of the workplace equipment Every organization has different equipment within its possession. For example, the computers are basic equipment f the employer, and by that virtue, he or she has the duty to protect and safeguard their use by the employees. One of the areas of concern is where the use of this equipment causes collusion between the private life and the workplace demands of an employee. Usually, the employer has the duty to dictate how such equipment is used and also to ensure that they are meant for purposes of enhancing the product in the organization. In the case law above, the applicant used the computers of the organization to gain access to her personal media account. According to the organization, it’s unlawful to use the company resources to advance personal interest which is against the policies of the organization. Therefore, the decision arrived at of terminating the employment of the applicant was reached after consideration of the role of the employers in the use of the resources within the workplace. In a case where the personal life contravenes the regulation and rules set out by the employer, then the former prevails (McCallum 2005). Duty of ensuring adherence to the policies and regulation within the workplace The existence of policies has little implication for any organization if there have no proper force behind their implementation. Every organization relies on the position of management to realize better and efficient implementation of existing policies. In many cases, the employers are seen as the responsible offices in ensuring that the employees adhere to the different guidelines and codes of conduct spelled out by the organization (Priest 2014). This duty extends to ensuring that any contravention of these policies is met by instituting a punishment or by summoning the employee guilty of such contravention. In the case law provided above, the employer did the investigation on the personal updates made by the employee in regards to the activities of the organization. The careful scrutiny of the views addressed by the employee in her personal social media platform forms part of the activities of the employer. Therefore, the employer acted right within his domains to investigate the activities of the employee in regards to making statements which were against the policies of the organization and to further seek to address the digressing conduct of the employee. Status of the duties of the employers There are a number of growing concerns in the employment law. The introduction of better technology, civilization, expansion of the legal background and also the evolution of the global social life has led to new demands by the employees. In fact, the modern employee differs extremely with an employee in 1920s or later than that due to the growth of knowledge and expansion in the technological world. Presently, there are many instances in the employment law which has both been fully agreed to by the scholars and judicial institutions (Lovenduski 2010). For example, there is no common law which is currently regulating privacy issues among the employees. There exists vacuum especially in administering the use of IT equipment in the workplaces. The status of the employees has greatly changed in line with the rising demands of the employees. Significant changes have been seen in the management of freedoms and rights of employees, protection of the employees from privacy breaches and also growing demands by the employees on recognition by the employees. This has forced the modern employer to become more cognizant of the new needs and development of the workforce and also to come up with better ways of managing the growing concerns. Are the employees well protected? The changes which have so far occurred in the workplaces have seen little protection extended to the employees. The employees are not well protected especially in terms of their privacy concerns and also in their bid to exercise their freedoms. For example, some modern employers scrutinize the personal conversation which occurs among the employees by practicing surveillance on the emails, phone calls and other communication channels in the organizations. There is an increase in the explosion of the private life of a modern employee due to the ability of the employees to have control over the infrastructure of the company. Besides, the modern employee feels less protection in the manner of expression of their concerns in the organizations. For example, some of the existing laws rely on the personal opinions made by the employees as a ground for instituting legal action and eventual termination of their contracts. This is exemplified in the case law discussion above. In such case, the employees feel that they are much exposed and have a lot of their personal concerns ignored. Conclusion In my view, I make a consideration that the law governing the use of social media among the employees in Australia does not contravene the freedoms and rights of the employees. The responsible use of the social media platforms is one of the greatest responsibilities of any employee of the modern organization. This is premised on the fact that many people use this tool for communication and therefore any expression made has a great impact. According to the merits explained by the court in making their decisions, I agree with the ruling and further buttress the existing legal framework regulating the use of the social media in the country. Suppose this regulation is not prevalent, any employee can take advantage and make any political exposure about the employer, and this contravenes employment law. References Althaus, C., Bridgman, P., & Davis, G. (2012). The Australian policy handbook. Allen & Unwin. Corney, A. (2014). Unfair Dismissal Relating to the Use of Social Media-An Analysis of Case History. Canberra L. Rev., 12, 144. Kaufman, B. E., & Taras, D. G. (2016). Nonunion employee representation: history, contemporary practice and policy. Routledge. Lovenduski, J. (2010). The dynamics of gender and party. Women, Gender, and Politics: A reader. McCallum, R. (2005). The Australian Constitution and the shaping of our Federal and State labour laws. Deakin L. Rev., 10, 460. Priest, M. (2014). Do workers have the right to bad mouth their employers?. Governance Directions, 66(7), 435. Quinlan, M., & Johnstone, R. (2009). The implications of de‐collectivist industrial relations laws and associated developments for worker health and safety in Australia, 1996–2007. Industrial Relations Journal, 40(5), 426-443. Sternlight, J. R. (2003). In Search of the Best Procedure for Enforcing Employment Discrimination Laws: A Comparative Analysis. Tul. L. Rev., 78, 1401. Stewart, A. (2008). Stewart's guide to employment law (Vol. 3). Sydney: Federation Press. Toh, S., & Quinlan, M. (2009). Safeguarding the global contingent workforce? Guestworkers in Australia. International Journal of Manpower, 30(5), 453-471. Yamada, D. (2002). Workplace bullying and the law. In Bullying and emotional abuse in the workplace: International perspectives in research and practice (pp. 399-411). CRC Press. Read More