The Federal Court has ruled it is not a workplace right for employees to talk to the media, after a prison guard allowed a union to include her comments about the conditions of her workplace in a media release picked up by major news outlets.
United Voice, the union representing employee Kylie Muscat, lost an injunction to have Muscat’s employment reinstated by GEO Group in late August.
Justice Collier dismissed the claim for an adverse action and accepted an undertaking by GEO to continue paying Muscat until her case is heard in full in the Federal Court next year.
Muscat, who was a union delegate, had told United Voice that safety had been jeopardised in the Wacol correctional facility in south-east Queensland, where she had been employed since 2006, because of a smoking ban imposed on prisoners.
Muscat was quoted in the media release, issued in August, as saying: “On top of the resourcing issues we already had, conditions at the prison have become a perfect storm and it’s workers who are suffering … prisoners at the Centre could take advantage of security gaps identified in unguarded media commentary by members of staff at the Centre, is a real risk.”
Two metropolitan daily publications, the Sydney Morning Herald and the Brisbane Times, picked the story and published Muscat’s comments.
Believing Muscat had breached its code of conduct, GEO suspended her with full pay and required her to show cause as to why her employment should not be terminated.
United Voice argued Muscat had merely exercised her workplace rights within the Fair Work Act and was entitled to speak to the media in her capacity as a union delegate.
Justice Collier said the prison officer had clearly breached the applicable enterprise agreement that required employees to adhere to a code of conduct that stated employees were not to deal with the media on company-related matters under any circumstances.
He was not persuaded there was a workplace right for employees to comment to the media under the Fair Work Act and dismissed the claim.
United Voice prisons co-ordinator Michael Clifford told SmartCompany the full outcome of the case would not be decided until it was heard in court next year.
“The court is still yet to decide who’s right and who’s wrong in the case,” says Clifford, who points to the need for the court to look at what the union said versus what Muscat herself said.
“We believe Kylie hasn’t said anything detrimental about the company. Union delegates should have the right to advocate on issues, particularly on safety.”
United Voice and Muscat last week rallied against concerns over safety in the prison system outside the State Law Building in Brisbane’s CBD. Muscat appeared with a gag over her mouth.
Finlaysons partner and workplace law specialist Guy Biddle told SmartCompany an employee has the responsibility of fidelity to their employer, which meant they had to act within their best interests.
Biddle says employees must seek internal resolution through the company’s dispute resolution mechanisms before externally seeking to resolve issues.
“Before you bad mouth your employer, in the first place, you have to go to them,” says Biddle, who points out employees may also face issues of defamation if they speak out about their employer.
“To go externally is very risky,” he says.
Biddle says it is a very good idea for employers to have codes of conduct and policies on such issues.
“Whether they are talking to the media or talking through social media, there are so many easy ways to communicate concerns,” says Biddle.
“Employers need to make it clear if you have got a problem, you’ve got to start with us.”
United Voice and GEO Group were contacted for comment but SmartCompany did not receive a response prior to publication.
Kirsten Robb is a former journalist at SmartCompany. Previously, she worked at News Corp as a property reporter for Leader Newspapers and the Herald Sun, and holds a Masters of Journalism at Melbourne University.
