Introduction
Reasonable steps
Due process
The outcome
Privacy
Notes
Introduction
The recent public exposure of a ‘private’ email conversation between two employees of a large legal firm demonstrates that it is best not to send or receive anything that you wouldn’t want the whole world (especially you employer) to know.
Margaret White, one of the Board’s Senior Workplace Relations Consultants, discusses the issues.
Most employers have strict policies concerning the misuse of computers. Inappropriate screen savers, emails and internet access are all targeted. Such activities affect productivity and give rise to the possibility that other employees will be offended, intimidated or humiliated. In other words, harassed.
Employers must take reasonable steps to ensure that employees are not bullied or harassed. This requirement arises under both anti-discrimination and occupational health and safety legislation. Monitoring email or internet use is a necessary part of the requirement.
Reasonable steps
Reasonable steps can include, of course, having a comprehensive and accessible email policy which clearly states what is, and what isn’t, acceptable behaviour.
Employers must also take reasonable steps to ensure that their employees are aware of their policies. ‘Reasonable steps’ include: showing employees a video describing company policy1; ensuring staff have read and understood the policy and reinforcing it with a message each time they log on to a computer2; and reinforcing the policy, contained on the employer’s intranet, through the use of emails and screen savers3.
The employer’s responsibilities have not been met, however, where employees have limited computer knowledge, misunderstand the effect of their company’s email policy, and the employer has “assumed” that they have read the policy. In one case where the policy was among a large volume of documents given to them at induction, it was held that the employer had failed to make workers aware of its internet usage and email policy.4
On the other hand, employees have a duty to be aware of the content of policies which been brought to their attention. Excuses which did not help dismissed employees include: they hadn’t taken any notice of the video5; they hadn’t read the policy despite training as an harassment contact officer 6; that a photo of a naked woman draped in a pink sheet
was a ‘family portrait’7; that repeated access to a pornographic site was accidental8; and that the recipient had requested the email; and that the employee had not read the Code of Conduct despite being a Duty Manager whose his duty statement required him to enforce it9.
Most policies raise the prospect of dismissal and State and federal industrial relations commissions are mostly unsympathetic to employees who have been terminated.
Due process
Employers are, however, still bound by the rules of natural justice (or due process) in the enforcement of their policies.
Under the rules of natural justice, both the process and the outcome must be fair. That the employee knew of the allegations and was given ample opportunity to reply is fundamental. The opportunity to make a written submission may be fair, even though no actual interview has taken place10
Due process also requires a decision-maker to consider all relevant evidence when deciding whether or not an employee is guilty of an accusation. When an employee claimed that he had not sent an email; that email security was poor; and that staff commonly knew each others’ passwords and used their computers, it was held that the employer should have investigated these claims before dismissing the employee 11.
The outcome
The rules of natural justice require a fair outcome. The punishment must fit the crime.
A fair outcome is one that is applied consistently to all employees who have been found guilty of the same or similar workplace offences. When only two of 24 employees involved in sending and receiving pornographic emails were sacked, one of them argued that this was unfair.
In dismissing the worker’s claim, the Australian Industrial Relations Commission took note of the facts that he had sent more and worse emails than anyone else, that he had received training as an harassment contact officer and should have known better, and that, unlike his colleagues, he showed no remorse12.
In another case, however, two employees who had little computer experience were caught because they did not know that they could delete emails. They were dismissed while their more savvy colleagues received lesser punishments, despite having received the same emails13.
To achieve a fair outcome, it is necessary to take into account any “mitigating circumstances”. The fact that someone hasn’t read a policy is not a mitigating circumstance when they should have read it, given their circumstances14. Nor when the employer has taken all reasonable steps to ensure that employees are aware of the policy15. Reading the policy after you’ve been caught doesn’t help.16
The Commissions take a dim view of steps taken by an employee to avoid detection, such as loading an uninstaller onto his computer17 or downloading 8,000 files after being told there was to be an investigation into his email use18.
Provided that the employer has taken all reasonable steps to ensure that employees understand their email policy, and provided that an accused person has been accorded natural justice prior to his dismissal, it is not necessary to warn or counsel a person who has been found guilty of a dismissible offence.
Privacy
Many employees have found, to their sorrow, that deleting an email doesn’t mean that it cannot be found later. Due to concerns about the possible breach of privacy inherent in the surveillance of emails and internet use, the Workplace Surveillance Bill 2004 (NSW) requires employers to inform employees of the surveillance to which they are subject.
Monitoring the use of computers is, therefore, a responsibility of employers, but employees are entitled (except in certain approved cases) to advance notice of the nature of the surveillance to be carried out.
Notes
1 Micallef v Holden Ltd PR 900664 (5 January, 2000) IRC
2 Murray v Department of Family and Community Services. PR913897 (1 February 2001)
3 Williams v Centrelink, PR942762. (15 January 2004)
4 Public Service Association v NSW Roads and Traffic Authority. NSW IRC 7486 and 7487 or 2001. 14/6/02
5 Micallef v Holden, note 1.above
6 Williams v Centrelink. Note 3.above
7 Wazir v WTH Pty Ltd t/as Avis Australia. NSWIRC 5330 0f 2002 (21 January, 2002)
8 Murray v Department of Family and Community Services, note 2.above
9 Rogers v State Rail Authority of NSW, PR959994, 13 July, 2005.
10 Rogers v State Rail, note 9. above
11 Harrington v Phillip Morris Limited PR 15206 (13 March, 2002)
12 Williams v Centrelink, note 3.above
13 Public Service Association v the RTA, note 4. above.
14 Williams v Centrelink, note 3. above and Rogers v State Rail, note 9.above
15 Micallef v Holden, note 1. above and Wazhir v Avis Australia, n.7, above
16 Rogers v. State Rail, note. 9 above.
17 Murray v Department of Family and Community Services
18 Wazir v Avis, note 7. above
