Defamation can occur in the workplace and needs to be dealt with promptly and professionally, otherwise it could lead to substantial economic loss for a business and the employee as well as workplace health and safety issues could arise. This can include an employee making a worker’s compensation claim. Victims of workplace defamation can also suffer long lasting effects on their health and career prospects.
Since about January 2006, Australia has enacted national, uniform defamation laws called the Defamation Act 2005. The Defamation Acts are almost identical throughout all States and Territories of Australia. This article refers to the Defamation Act (Qld) 2005, however, that reference can be taken to apply in all States and Territories of Australia.
What is Defamation?
Defamation is when one person makes a publication about another, damaging the reputation of the latter. A claim in defamation is successful when three main elements are satisfied, which include the defamatory publication, that the publication identifies the Plaintiff, and that it has been communicated to a third party.
What is Defamatory Material?
“Defamatory matter is the publication of matter which tends to lower a person’s reputation in the estimation of his or her fellows by making them think less of that person, usually by bringing the person into hatred, contempt or ridicule”: Parmiter-v-Coupland (1840) 6 M & W 105.
Overall, the meaning attached to defamatory matter, also known as defamatory imputations, is established by what an ordinary, reasonable reader would perceive the publications to mean. The ordinary, reasonable reader refers to the average person who does not force any interpretation nor is sceptical in their beliefs. It is someone who has enough experience to read between the lines of a publication and considers the defamatory material in its whole context. With the ordinary, reasonable reader, there is a balance between extreme and naïve thinking and meaning.
Below are some case examples of defamation in the workplace.
In the case of Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman1, a 20-year-old childcare worker left the employment of a childcare centre due to his commitments to his studies. The childcare centre sent an email to the parents of children at the childcare centre stating that he was no longer employed by the business due to disciplinary reasons and that he was not truthful. The email went on to state “I felt it was better for him to move on and possibly gain a bit more life experience.” The childcare worker successfully sued his former employer and the Court held that the email was defamatory. The Court awarded him $237,970.22 for compensatory, aggravated, and special damages including interest. The Defendants were also ordered to pay his legal costs.
The childcare centre appealed the decision and in KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare v Bowden2 the Court upheld the appeal, finding that a defence of Qualified Privilege applied. The Court held that it was relevant for parents of the children at the childcare centre to know the reasons why an employee who had until recently cared for their child was no longer working at the centre. The Court also found that the email to parents of children at the childcare centre were not sent with malice. Judgment was therefore, entered for the childcare centre. A discussion of the relevant defences, including Qualified Privilege, appears below.
In Boland v Dillon3, the Appellants were high level executives at the Border Rivers-Gwydir Catchment Management Authority. One was a board member and the other a general manager. Another board member in the same organisation accused the two Appellants of having an affair. She did this in a conversation at a café in speaking with the chairman of the board of the organisation that all parties worked at. The trial judge in the New South Wales District Court awarded to the two Appellants $5,000 each. On appeal to the New South Wales Court of Appeal, a new trial was ordered on the question of malice. The appeal to the High Court failed with the Court finding that the conversation and the assertion of the allegation of the affair was covered by the defence of Qualified Privilege, which is discussed below. The appeal was dismissed and a new trial on the question of malice was ordered, confirming the Court of Appeal’s order in that regard.
In Bristow v Adams4 the New South Wales Court of Appeal in which the Plaintiff was successful in obtaining an award of $10,000 in damages. The Respondent resigned by email to her supervisor but also sent the email to the Human Resources manager of the company and disseminated the email to other offices of the company. In her email, she criticised her supervisor’s character and conduct in rather uncompromising terms. The Court held that the email was defamatory.
In the case of Tassone-v-Kirkham5, the Defendant sent an email from the Plaintiff’s email address alleging that he was homosexual and imputing that he was seeking sexual encounters with others. The Plaintiff and the Defendant both worked for the Department of Correctional Services as correctional service officers. The email was sent to all the people with email addresses at the Department for Correctional Services and other government bodies, some over 2,000 people. The Plaintiff was awarded $75,000 for non-economic loss and a sum for economic loss at a sum to be determined. In that particular case, the Plaintiff suffered a psychiatric injury as a result of the defamation and made a worker’s compensation claim.
What are my options as a Defendant in a Workplace Defamation Matter?
Below are just some of the common defences that can be used in a workplace defamation matter.
Qualified Privilege is a common law defence, and it is also recognised in the national, uniform defamation laws.
The operation of the qualified defence is not limited to certain circumstances. It is only defined by the requirement that there be a duty to provide information and a corresponding interest in receiving that information. When there exists this corresponding duty and interest it is said that a privileged occasion has arisen or is present. The duty need not be a legal duty but may instead be a moral or social one6. As set out in Section 30(1) of the Defamation Act 2005, the Defendant is required to prove that the third party to a publication has an interest in having information on the subject in the publication, that the matter is in the course of proving said information, and that the publisher’s conduct was reasonable.
The defence is not effective if7:
- by exceeding the privileged occasion “by going beyond the limits of the duty or interest”; or
- by abusing the occasion by publishing when actuated by malice or improper motive.
Justification or Truth
It is a defence to a claim for defamation if the published material is true or substantially true. This is also known as the defence of justification. Section 25 of the Defamation Act 2005 provides as follows:
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
The defence of contextual truth means that there are several defamatory imputations in the published material and the Defendant is required to prove that one is substantially true while the others do no further harm to the Plaintiff’s reputation. For example, the Defendant has defamed the Plaintiff where there are defamatory imputations suggesting that the Plaintiff is a liar, is a paedophile, and is untrustworthy. The Defendant can raise the defence of Contextual Truth proving that the Plaintiff is a paedophile is true (using evidence) and further stating that the other imputations do not further harm to the Plaintiff than the that true imputation.
The defence of contextual truth is recognised in the national, uniform defamation laws. Section 26 in the Defamation Act (Qld) 2005 provides as follows:
26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that-
- the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (contextual imputations) that are substantially true; and
- the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
If a Defendant agreed to the publication of the defamatory matter, then that is a complete defence.
Damages in Defamation Claims
The Courts award damages for economic loss, non-economic loss and have the power to award aggravated damages. The usual order in a defamation court case is that the losing party pays the costs of the other party. An award of damages for non-economic loss such as for hurt feelings and feelings such as despair as a result of the publication of defamatory matter are limited in the national, uniform defamation legislation to $250,000 or any other amount in accordance with Section 35 as may be set from time to time.