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Whatsapp Can you lose your job for what your post online in the privacy of your own home?

A free speech battle is being fought between government departments and their social media savvy workers. Di Martin reports on two legal test cases that will set the limits of what public servants can post online.

Imagine it's 10:00 pm, and you're an off-duty Centrelink worker posting online under a pseudonym. On a forum talking about service level cuts, you write:

I honestly have zero idea what all our managers do, especially the higher managers. None at all.

Can you lose your job for this?

Can you be sacked for saying this about last year's unpopular budget?

I'm quite surprised by the lack of discussion in this post today – is it because there is just nothing anyone can say to justify the savagery of the cuts?...The change in the Pension age from 67-70 - Abbott and Hockey can go on all they like saying this isn't a broken promise because it won't begin until 2017 – however it is in THIS budget – meaning that, yes, it is a broken promise.

Daniel Starr, a 40-year-old Centrelink worker from Wollongong, posted these comments using the handle 'mmmdl'.

Starr has worked at Centrelink for more than 20 years and his immediate managers give him glowing references. They describe him as 'a committed and dedicated employee', who is 'respected by those he works with', and who has 'always undertaken any role asked of him with dedication, quality output and high performance'.

He's been active in several online forums for a decade. Yet it was only when Daniel Starr corrected a departmental social media officer called 'Flick' about waiting times for Youth Allowance, that he ran into serious trouble.

On the Whirlpool forum he posted:

Please Flick, you need to stop giving this incorrect information. The KPI for Youth Allowance student claim is now 42 days, not 21. Continually saying 21 days, as it used to be, is doing nothing other than giving people false hope, and increasing customer traffic.

'Flick' complained, and the department launched an investigation to find out the identity of 'mmmdl'. Trawling through clues left in Starr's online history, they confronted the Centrelink worker, and then told him he would be sacked.

Starr, like most public sector workers, is bound by a strict code of conduct. It says workers must appear impartial, uphold the reputation of their department and treat the public with courtesy and respect at all times.

The Department of Human Services claimed he had deliberately tried to damage the reputation of his employer, and demonstrated a fundamental lack of respect and professional behaviour.

Starr sued for unfair dismissal and that case has just been decided in the Fair Work Commission. In an unexpected ruling, the commission ordered he must be reinstated.

It agreed there were objectionable posts, including one where Starr calls clients 'spastics' and 'junkies'.

But the ruling said there were mitigating factors, and being sacked was just too harsh a penalty.

It also roundly criticised the department's interpretation of the code of conduct, comparing it to a gross intrusion on the private lives of public servants.

The Department of Human Services has appealed to the Fair Work Commission's full bench. The case is expected to be heard in May.

Do you know more about this story? Contact Background Briefing.

Another case being closely watched by employment lawyers is that of Bernard Gaynor.

Gaynor is an officer in the Army Reserves, has served in Iraq, and is a self-styled freedom of speech activist.

Gaynor also opposes homosexuality, and has repeatedly attacked military top brass online for allowing soldiers to march at the Sydney Gay and Lesbian Mardi Gras in uniform.

He attacks Islam as inferior to Christianity, and he's a strident critic of transgender people, particularly those in the military.

The Defence Force last year sacked Gaynor, citing several of his online posts.

Even a Federal Court judge ruled the posts broke a number of Defence Force guidelines, including guidelines on equality and diversity.

But the judge said those guidelines can't be applied to reservists who are off duty.

'Reservists are bound by ADF regulations when they are acting as reservists, which is when they are in uniform or are on duty,' Gaynor told Background Briefing.

'None of my statements were made in uniform or on duty. They were made as Bernie Gaynor, private citizen.'

As such, the judge found Gaynor is protected by an implied freedom of political expression in the constitution.

The Defence Force, too, is appealing that judgment.

Background Briefing approached the acting public service commissioner, Stephanie Foster, for an interview about Starr's case and others, but she was unavailable.

Her office instead sent a statement outlining social media guidelines, which says employees shouldn't do or say, anything that might cause a reasonable person to question their ability to serve the government of the day.

Hear Di Martin's full investigation into public servants' use of social media on Background Briefing at 8:05 am on Sunday.

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