Defamation in the workplace: what you need to know

by Janie Smith21 May 2014
When does talking about a boss or a colleague cross the line into defamation?

It’s a simple answer, according to Australian Defamation Lawyers principal Barrie Goldsmith.

“Anybody is entitled to say anything they like about a fellow employee or an employer, provided that it is said to the correct person and provided that it is not said with malice. That’s where it oversteps the line.”

The correct person is a superior in the organisation who would have responsibility for investigating the allegations.

Defamation is defined as something said in written or spoken form that is damaging to a person’s reputation.

That can include posts made on social media sites. In a recent case, an Australian music teacher was awarded $105,000 in damages for defamation after a former student targeted her on Facebook and Twitter.

In that case, the judge said that defamatory publications made on social media were easily spread because of the “grapevine effect” of using mobile phones and computers.

Goldsmith said he had acted in a case where a disgruntled employee sent an email to the whole company, alleging misconduct by her manager.

“I acted for the manager of a company. One of his subordinates was about to leave and in her final afternoon, she sent an email to all and sundry, including interstate employees.

“Had she just confined that email to the directors or my client’s superior, then she would have been protected by the defence of qualified privilege. She didn’t, she emailed it to all and sundry – the clear illustration I gave to the judge was that she also sent a copy to the storeman in the Brisbane office, who had no legitimate interest in knowing about these allegations against my client, who was a manager in NSW.”

It’s important to make sure that any complaints or allegations are made to the appropriate person in the company, said Goldsmith.

“If someone wants to make a complaint to the directors, for example, the directors would always have a legitimate interest in knowing about allegations against any employee because ultimately, the directors are responsible for everything that goes on within the company.”

If you suspect a co-worker of misconduct, don’t repeat your thoughts and allegations to other colleagues, he said.  

“Don’t make the allegations to a co-worker because he or she will probably have some personal influences that will affect what’s said. The proper course is that if you suspect someone and you’re inclined to say something, report it higher up the chain.”
 
Defamation defences:

Qualified privilege
This can be used as a protection against defamation as long as the statements or allegations were made in good faith to the correct person and without malice.
“Qualified privilege is a more direct defence and as long as you make a complaint to the right person and as long as it’s not made with malice, you’re fully protected,” said Goldsmith.

Truth
Truth can be used as a defence, but it is expensive to try to prove, said Goldsmith. The burden of proof rests with the defendant, who has to provide evidence that their allegations are true.
“If an employee suspects that a person is stealing and then repeats that allegation, the worker who makes that allegation would have to produce evidence in admissible form that the person was stealing.”
 

COMMENTS

  • by Robyn Matthewman 21/05/2014 12:38:25 PM

    I was subjected to bullying / harassment by my Co-Ordinator, I reported to this to my Manager and HR, unfortunately as I suffer from major depression this was blamed for my 'over reaction'. Eventually I retired in April

  • by Sebastian Harvey 21/05/2014 3:49:10 PM

    My understanding of the issue is that qualified privilege also extends to HR and, where an organisation has them, Contact/Diversity Officers. Both groups should have been given this right as part of their role to provide people with information about their rights and/or to follow-up on allegations. An important condition of qualified privilege is that the conversations are confidential. HR, contact officers and managers who spread allegations to anyone not covered by qualified privilege could still be at risk of a defamation claim. Allegations made to HR or a CO must still be in good faith to avoid being defamatory.

  • by HW 21/05/2014 10:11:31 PM

    Robyn - even though you have retired, your suffering from Depression should not have been used by the organisation to avoid liability for genuine workplace bullying. It might be worth your while to get professional advice (a lawyer and/or your former union, for example) immediately about any rights you may have in this case.

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