Public Sector Informant: Jobs might be on the line for public servants misbehaving after hours

Among the most vexing questions to arise in public service disciplinary proceedings is whether or not out of hours behaviour can constitute a breach of the APS Code of Conduct.

Unfortunately, there is no simple answer. Despite the issue being relevant in a range of diverse contexts - from political comments to drug use to family violence - the law, and the government's interpretation of its authority, remain rather muddled.

There was, once upon a time, no such confusion. Australian employment law traces its origins to medieval Britain and the master-servant paradigm that formed the predominant basis for labour relations in that era. Servants were part of a master's household and there was no real concept of "working hours" - they were never off duty.

With the rise of modern, contractual employment, employers lost their ability - and desire - to regulate employee conduct 24/7. Particularly in industrial workplaces, the employee's work during their allotted factory hours was the sole consideration. "Provided it did not diminish their capacity to perform the work," eminent labour academic Ronald McCallum has observed, "the out of hours opinions, hobbies and odd jobs of these employees were of little interest."

The law eventually found an equilibrium between these two extreme positions, at least in the private sector context. Today, it is broadly accepted that, with some exceptions, "an employee is entitled to a private life".

That statement, and those exceptions, were settled in the seminal decision in Rose v Telstra. In a case involving employees who had engaged in an after-work punch-up, Vice President Iain Ross found that the sacking of one worker was unfair. To justify termination, he held, out of hours conduct "must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee".

For public servants, Rose offers only partial protection from interference in their private lives. The relationship between APS employees and the government is "constitutionally distinctive", as Justice Paul Finn held in McManus v Scott-Charlton. Courts have accepted that regulation may be more intrusive in the public sector than would be permitted elsewhere, even if it must still be, according to Finn, "carefully contained and fully justified."

Those more onerous intrusions are presently found in the Public Service Act and its Code of Conduct. Most subsections of the Code concern behaviour "in connection with APS employment".

But subsection 11 demands that "an APS employee must at all times behave in a way that upholds" the APS Values, Employment Principles and the APS' integrity and good reputation.

Found within these APS Values are obligations to be "ethical", "respectful" and "impartial". When subsection 11 was enacted in 1999, the explanatory memorandum indicated that it was deliberately intended to be "wider than" its predecessor.

What does this part of the Code mean?

If read literally, it would require public servants to act ethically, respectfully, impartially and uphold the APS' reputation 24 hours of each day, seven days a week, 52 weeks a year. Posting on Facebook about climate change on a Sunday? That might breach the impartiality obligation. Smoking marijuana on a Friday night? That might impact the APS' reputation. Slapping someone at a barbecue on a Saturday afternoon after they insult your partner? That is hardly respectful.

It is not entirely clear whether this is, indeed, the correct interpretation of the Code of Conduct. On one hand, the APS certainly likes to assert that "at all times" means just that - we have seen it in countless matters, as disciplinary officers try to expand the APS' authority over private conduct.

On the other hand, when it suits them - such as when former Immigration Department employee Michaela Banerji, fired for her tweets, claimed that the provision was unconstitutional - the government has been eager to promote a narrow interpretation. "'At all times' in s 13(11) does not mean", the Solicitor-General argued in written submissions to the High Court, "always and under any circumstances".

The case law is no more coherent. In Cooper v Australian Taxation Office, a public servant was imprisoned for child sex abuse in a foreign country, and he subsequently had his employment terminated. He lodged an unfair dismissal claim, arguing that he was innocent (an appeal was ongoing) and, in any event, the offence had no connection with employment. Deputy President Jeff Lawrence accepted the ATO's submission, that the "at all times" provision "creates an overriding obligation, not just in work time or workplaces, for an employee to behave with the highest ethical standards". Accordingly, he found that the dismissal was valid. A full bench subsequently commented that such a "broad construction ... might not be correct", but nonetheless refused to grant permission to appeal.

In Starr v Department of Human Services, Vice President Adam Hatcher took a different approach. Centrelink had fired a staff member for anonymous comments on an online forum, some of which were critical of government policy. Hatcher rejected Centrelink's submission that the obligation to be apolitical extended to the employee's private life. He also forcefully denied the suggestion that APS employees had to be "respectful" outside of work, lest they fall foul of the Code. Hatcher mused: "It would require express and absolutely unambiguous language to justify the conclusion that such a gross intrusion into the non-working lives and rights of public servants was intended."

The ultimate answer to this dilemma might be found somewhere in the middle of the competing views. "At all times" probably does not mean, literally, at all times, but nor is it likely to only cover conduct where there is a "connection with APS employment".

The High Court sidestepped the scope of "at all times" in Comcare v Banerji, so it may be some time before we have a superior court's determination on the merits of that suggested compromise.

Until then, public servants misbehaving out of hours should be wary; for now, "at all times" may well mean at all times, at least some of the time.