Defamation in the workplace

If you have been defamed at work you may be entitled to compensation for defamation.

Generally, statements made at work are no different to any other statement.

If somebody defames you at work, whether by saying something to other colleagues or co-workers, or to clients or to your boss, either in person or in a defamatory email or otherwise, you may have a case in defamation and be able to seek damages. 

Defamation at work is generally only protected where a valid defence under the Defamation Act 2005 (WA) is available.  

The most common defence in workplace defamation situations is the defence of qualified privilege. 

Qualified Privilege

A defamatory statement, however, if made to a superior, or to a HR person as part of a formal complaints or investigation process, then it may be protected. 

This is because qualified privilege attaches to statements where the recipient has an interest in having the information, and the statement is made while providing that information, if the person acted reasonably in the circumstances (Defamation Act 2005 (WA) s 30(1)).

So a statement made concerning a persons’ performance for instance, if made to a superior and appropriately in order for the superior to be able to assess that person’s performance or investigate further is likely to be protected. 

In Boland v Dillon (2011) 243 CLR 298  the High Court of Australia decided that in some cases there are duties to advise the company of accusations against a company employee or to discuss activities by an employee or client which might be detrimental to the company or affect the efficiency of the company’s business. In these circumstances, the defence of qualified privilege might be available. 

However, if the person acted maliciously and intended to injure your reputation then they will not be protected by the defence (Defamation Act 2005 (WA) s 30(4)). 

Examples

There have been many cases where a person has been defamed in the workplace by a co-worker and has recovered damages. 

In Bristow v Adams [2012] NSWCA 166  the Court found that a letter sent to the HR manager of the company contained defamatory meanings about a supervisor, and awarded $10,000 damages. 

In Tassone v Kirkham [2014] SADC 134  an email was sent by one prison officer using another prison officer’s email which read “Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with”. The plaintiff went on sick leave, suffered stress and anxiety and was unable to continue in his position. He was awarded $75,000 for non-economic loss.