Defamatory Comments – Employee Perspective and Employer’s Defences

High-profile and multimillion-dollar cases launched by celebrities Rebel Wilson, Geoffrey Rush, and a Melbourne dentist suing over a bad Google review, have brought increased attention to defamation action in Australia. Celebrities and determined dentists aside, what does defamation look like for employees in the workplace?

Defamation actions in Australia are governed by substantially uniform Defamation Acts of each State and Territory. In Victoria, the applicable law is the Defamation Act 2005 (Vic), which operates alongside the tort of defamation. A ‘tort’ is a civil wrong that causes a person harm or loss. 

Defamation can occur in written or verbal form, or be published, heard, or read by at least one other person, and must damage a person’s reputation – for example, by causing ordinary, reasonable members of society to think less of someone,[1] exposing the person to ridicule, or causing others to shun or avoid them.

An aggrieved person may bring a defamation claim to the particular jurisdiction or location (state or federal) where the defamatory statement is published. In Victoria, The Magistrates’ Court can hear civil disputes up to the value of $100,000. Where a greater claim for monetary relief is sought, the County Court can hear defamation proceedings in its Defamation List.

An example of workplace defamation can be seen in the case of Bristow v Adams [2012] NSWCA 166, where a supervisor was defamed by an accounts manager. After resigning, the accounts manager sent an email to other employees and the Human Resources Manager criticising her supervisor. This included calling the supervisor “belittling and unprofessional”, “untrustworthy and cunning by nature”, and “of questionable and dishonest character”. The court found there was defamation and awarded the supervisor $10,000 in damages.

However, the nature of the workplace makes it difficult for defamation actions to succeed. Employers may defend themselves by proving defamatory imputations are substantially true,[2] or by proving the statements are opinion based on proper material,[3] in addition to other defences listed Division 2, Part 4 of the Defamation Act 2005 (Vic).

A common defence raised by employers is the defence of “qualified privilege”,[4] where the employer establishes, they have a duty to publish defamatory material, that the publication was fairly made, and there was no malice.[5] This defence has been successfully raised in Wong v National Australia Bank Ltd [2021] FCA 671, where the employer emailed employees about resourcing changes to its Internet Banking Team. In its email, the employer stated its manager’s replacement and thanked her for her significant contributions. The manager alleged the employer made defamatory imputations that she was incompetent or had misconducted herself. Snaden J held that the announcement concerned important structural and personnel changes that impacted various teams, so there was valid community interest in making the announcement.[6]

Employees considering taking defamation action should note that there is generally a limitation period of one year for bringing claims.[7] If you believe this applies to you, contact the lawyers at McDonald Murholme for further advice.

[1] Dye v Commonwealth Securities [2012[ FCA 242, [684] (Buchanan J).

[2] Defamation Act 2005 (Vic) s 25.

[3] Defamation Act 2005 (Vic) s 31.

[4] Defamation Act 2005 (Vic) s 30.

[5] Wong v National Australia Bank Ltd [2021] FCA 671.

[6] Wong v National Australia Bank Ltd [2021] FCA 671, [371].

[7] Defamation Act 2005 (Vic) s 6.