Privacy And Workplace Surveillance Act

Privacy and Workplace Surveillance Aaron Magner Legal Counsel University of New South Wales Introduction The Workplace Surveillance Act 2005 (NSW) significantly curtails employers’ rights to use covert electronic surveillance in the workplace. The Act was originally heralded as a long-needed protection of employee privacy. However, in practice the Act does not so much protect employee privacy, rather, it requires employers to inform employees of the surveillance to which they are subject. So long as employers notify their employees in advance they are effectively free to overtly and covertly spy their employees while they are "at work". The Act encompasses the regulation of all forms of surveillance, including the monitoring of employee email, Internet usage, camera surveillance and tracking surveillance. The Act also: • limits an employer’s ability to monitor or block employees’ emails or restrict access to the Internet unless it is acting in accordance with a policy that has been notified to employees, • introduces new restrictions on the use and disclosure of surveillance records, • expands the definition of employee – so it applies to, among others, independent contractors in the transport industry (such as truck drivers), as well as employees. Failure to comply with the Act may amount to a criminal offence. If a corporation contravenes any provision of the Act, a director or any other person concerned in the management of the corporation may also be taken to have contravened the same provision. Prosecutions proceedings may be instituted by trade union, as well as by the employee concerned. This paper analyses the Act focusing on the provisions that impact upon the monitoring of email and Internet use. The significance of the Act including surveillance of email and Internet usage is twofold: .1 .2

It provides much needed guidance for employers about the way in which the monitoring of employee email and Internet usage should be conducted. It recognises that the surveillance of email communications and Internet usage is simply one manifestation of surveillance in the workplace.

The presentation is in four parts. Part 1 involves a discussion of why employers should monitor employees’ email and Internet usage and looks at employees’ expectations of privacy, especially in relation to email communications. Part 2 canvases how email and Internet monitoring should be conducted in light of the framework of covert and overt (or “notified”) surveillance created by the Workplace Surveillance Bill. Part 3 examines the Federal Privacy Commissioner’s Guidelines for creating Internet and email policies and examines a Model Policy created by Electronic Frontiers Australia. The Model Policy provides a potential basis on which an employer can build a policy governing email and Internet use in the workplace. Part 4 discusses considerations of fairness that ought to be given weight during any disciplinary action an employer may take when surveillance reveals employee misuse of email or the Internet. The focus of this part of the presentation is on highlighting the considerations that ought to be kept in mind by an employer to avoid an unfair dismissal action by the employee. This part of the presentation will also indicate to employees, and lawyers representing the applicant in an unfair dismissal action, certain

procedural entitlements employees possess when being dismissed because of inappropriate use of email or Internet facilities. The paper discusses a number of cases that illustrate considerations relevant to the fairness of and indicate the sorts of issues that have been coming before the Industrial Commissions in respect to the misuse of email and the Internet. It is emphasised that an employee’s misuse of email and Internet facilities does not necessarily constitute sufficient grounds on which to summarily dismiss that employee. An employee who misuses email or the Internet should be afforded the same entitlements to procedural and substantive fairness in the reprimand and/or dismissal process that they would be entitled when faced with allegations of any other form of misconduct.

PART I Why would an employer want to monitor employee email and Internet usage? The issue of privacy Employees often consider email to be a private form of communication. Emails are certainly discreet. In workplaces that lack audio-privacy, such as open-plan office spaces, emails are often the most discreet and efficient way that a worker can communicate with his or her children, family, friends, work colleagues or business contacts. Emails also lend themselves to informal conversations, even though they attract the same liability as other forms of written communication. However, emails are not as private or secure as they may appear. Emails are generally not a secure form of communication: they can be intercepted by persons who possess the necessary equipment both inside and outside an organisation. Employees may assume that once they delete an email and empty their rubbish bin then the email is erased – after all, the email has then for all normal intents and purposes, disappeared from the system. However, often employees do not appreciate that deleting emails from one’s inbox and personal computer does not delete the email from the company’s server.

Employer obligations to employees Employers have an obligation to provide a safe workplace for their employees. This obligation exists at common law as a general duty to implement and maintain a safe system of work for employees. Employers must take reasonable steps to avoid exposing employees to a foreseeable risk of injury. It is reasonably foreseeable that the distribution of inappropriate material by email, such as pornography, vilification or malicious gossip may damage the health, safety and welfare of an employee for which an employer may be liable. Failure to take reasonable steps to prevent employee exposure to inappropriate emails may leave the employer liable at common law. The Occupational Health and Safety Act 2001 (NSW) also imposes obligations on employers to ensure the health, safety and welfare of all employees at work. Section 53 of the Anti-Discrimination Act 1977 (NSW) provides that an employer has strict liability for discrimination against an employee in the workplace unless the employer can prove it took all reasonable steps to prevent the discrimination from occurring. Similarly, an employer must demonstrate they took “all reasonable steps” to prevent an employee from sexually harassing another employee to avail themselves of the defence against strict liability under the Sex Discrimination Act 1984 (Cth). Finally, an employer who fails to prevent an employee from suffering harm as a result of harassment by another employee may be liable for compensation to that employee under the Workers Compensation Act 1987 (NSW). It is thus essential for an employer to ensure that email and Internet systems are not used by some employees in a manner that renders the employer in breach of it’s occupational health and safety obligations to other employees. It is insufficient for an employer to merely have a policy against inappropriate use of email and the Internet. Employers must also enforce such policies and cannot decline to monitor employee email or 2

Internet usage on the basis of respecting employees’ privacy. The surveillance, or monitoring, of email and Internet use is a necessary element in an employer’s strategy to prevent workplace harassment. It is however, astute for employers to be mindful of employees’ reasonable expectations of privacy when monitoring email and Internet usage. An unreasonable policy, a policy with draconian overtones, or a policy that is difficult to understand will detrimentally affect employee morale and may reduce compliance with the policy. A policy that balances employees’ expectations of privacy with the need to ensure the employer’s occupational health and safety obligations is likely to preserve employees’ implied right to a relationship of trust and confidence with their employer and is likely to increase employees’ commitment to their work and the organisation for which they work.

Surveillance as a mechanism of appraising and promoting employees’ work productivity Electronic monitoring of employees’ email and Internet usage may promote employees’ productivity by dissuading employees from spending excessive periods of time on personal emails or surfing the internet. Monitoring email and Internet usage is also an effective way for an employer to determine whether an employee’s productivity is unreasonably diminished by excessive personal emailing, surfing the Internet or bidding on e-bay et. al.. The discreet nature of emails, in particular, makes it difficult for employers to be aware of the amount of work-time an employee spends writing or reading non-work related communications unless the employer uses a form of electronic monitoring. The Workplace Surveillance Act severely curtails an employer’s right to covertly monitor employee use of email and the Internet as part of the performance appraisal of an employee. As discussed in Part Two of this presentation, if an employer wishes to use information obtained from the surveillance process in the performance appraisal of its employees, the employer must be careful to satisfy the requirement to adequately notify employees, in advance, of the intended surveillance and to what purpose the information gathered may be put.

PART 2 Monitoring employee use of Email and the Internet The existing law provides little guidance for employers about how to monitor employee email and Internet usage. The Privacy Act 1988 (Cth) contains ten National Privacy Principles which apply to the private sector and regulate the collection, storage and dissemination of personal information. In New South Wales, the Privacy Commissioner can investigate and conciliate alleged privacy breaches by organisations and individuals. The Act expands the Workplace Video Surveillance Act to encompass other forms of surveillance in the workplace. The Workplace Video Surveillance Act distinguished between overt and covert surveillance and regulates when, and for what purpose, overt and covert video surveillance can be used. The Workplace Surveillance Act retains the strict distinction between overt and covert surveillance. As a consequence, employees are entitled to advance notice of the monitoring or surveillance of their email communications and Internet usage. The consequence of the Workplace Surveillance Act for employers is that it is crucial to notify employees of what surveillance their email communications and Internet records are subject. Unless an employer obtains prior approval from a magistrate to conduct covert monitoring of email and Internet records, which requires an employer to follow a relatively onerous process, surveillance conducted for the purpose of performance appraisal is likely to render the employer in breach of the Bill.

The Workplace Surveillance Act 2005 (NSW) What is surveillance? Three types of surveillance are covered by the Act: Camera, computer and tracking (See Section 3 definitions). 1. Camera surveillance: This is defined as monitoring or recording by electronic means of visual images of the employee such as by means of a closed circuit television system. 3

2. Computer surveillance: This is the monitoring or recording by means of software or other equipment of the information input or output or other use of the computer used by an employee, including but not limited to sending and receiving email and accessing Internet websites. 3. Tracking surveillance: This is defined as surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device). The reference to "primary purpose" is of main concern. For example, mobile phones can be used to track the users location however this is not their primary purpose. Similar concerns apply to security access or swipe cards which can also be sued to track employees movements but is this the cards primary purpose? What is at work? Section 5 of the Act confines permissible surveillance of employees to activities “at work” which is defined as follows: "(1) For the purposes of this Act, an employee is at work for an employer when the employee is: (a) at a workplace of the employer (or a related corporation of the employer) whether or not the employee is actually performing work at the time, or (b) at any other place while performing work for the employer (or a related corporation of the employer). (2)

An employee who is a bailee of a public vehicle or a carrier under Chapter 6 of the Industrial Relations Act 1996 is considered to be performing work for the employer while engaged under the contract of bailment or carriage concerned."

In other words, an employee is “at work” when they are at any place where work is carried out for the employer whether this work is at a workplace or when working away from a workplace.

When can covert surveillance be carried out? Covert surveillance can be carried out in limited circumstances and for limited purposes. Section 19 makes it an offence for covert surveillance to be carried out without a "Cover Surveillance Authority." An employer must not carry out, or cause to be carried out, covert surveillance of an employee while the employee is at work for the employer unless the surveillance is authorised by a covert surveillance authority. The maximum penalty for a breach of section 19 is 50 penalty units, or $5,500. (A penalty unit is currently $110.) Section 20(1) reinforces that the purpose for which an employer may be granted an authority to conduct covert surveillance is confined to uncovering employees’ unlawful activity in the workplace. 1 Furthermore, section 25(1) provides that A Magistrate must not issue a covert surveillance authority unless the Magistrate is satisfied that the application for the authority shows that reasonable grounds exist to justify its issue. Section 25(2) and (3) sets out the ground for issuing a Covert Surveillance Authority: (2)

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When determining whether there are reasonable grounds to issue a covert surveillance authority, a Magistrate must have regard to the seriousness of the unlawful activity with which the application is concerned.

Section 20 What convert surveillance authority authorises A covert surveillance authority that is issued to an employer or employer’s representative authorises the covert surveillance generally of any employees while at work for the employer but only for the purpose of establishing whether or not one or more particular employees are involved in any unlawful activity while at work for the employer. 4

(3)

When determining whether there are reasonable grounds to issue a covert surveillance authority authorising covert surveillance of a recreation room, meal room or any other area at a workplace where employees are not directly engaged in work, a Magistrate must have regard to the affected employees’ heightened expectation of privacy when in such an area.

Section 26 imports a requirement for a Magistrate to have regard to employee privacy when deciding whether to issue a covert surveillance authority. Together these provisions impose a heavier burden on employers who wish to conduct covert surveillance than the burden imposed by the common law. The provisions have the effect of prohibiting covert surveillance that is only a ‘fishing expedition’ to uncover possible unlawful or undesirable employee behaviour in the absence of evidence warranting the surveillance. Application for Covert Surveillance Authority The Act requires that an employer must notify employees before surveillance can be carried out or obtain a covert surveillance authority from a Magistrate. The Act prescribes a series of specific requirements as to the form and content of the notice which must be given to employees. A key notification requirement is that employers must notify employees at least 14 days before the commencement of the surveillance. A covert surveillance authority may only be sought on the grounds that the employer suspects one or more employees are involved in unlawful activity at work. Conducting covert surveillance without the requisite authority is an offence (with some limited exceptions) and will impact on the permitted use and disclosure of the information obtained through the covert surveillance. Defences to prosecution for covert surveillance Surveillance that employees are not adequately notified of is covert surveillance and is subject to the requirements of prior authorisation of a magistrate. Such surveillance may only be conducted for the purpose of establishing whether or not the employee is involved in any unlawful activity at work. Section 22 of the Act sets out that is a defence to a prosecution for an offence for an employer to prove the covert surveillance was conducted: • •

solely to ensure the security of a workplace or persons in it, or surveillance of any employee was extrinsic to that purpose, or if there was a real and significant likelihood of the security of the workplace or persons in it being jeopardised if covert surveillance was not undertaken.

The defence will only apply if the employer notifies employees at the workplace (or a body representing a substantial number of the employees) in writing of the intended surveillance before it is conducted. The Act does not elaborate as to what is included under the concept of “ensuring the security of the workplace or persons in it”. If the courts interpret the concept to include the protection of the health and welfare of employees, it seems the defence in section 22 may allow employers to conduct covert surveillance of employee email and Internet usage for the purpose of preventing harassment of employees. If the courts adopt this broad interpretation of section 22 a further argument might be made that an employer might lawfully terminate the employment of an employee whose inappropriate use of email or the Internet jeopardises the welfare of another employee. Using covert surveillance evidence in disciplinary proceedings Section 22 (2) of the Act states that evidence of any surveillance made for security purposes that is unrelated to workplace security will not be admitted in evidence in disciplinary or legal proceedings against an employee unless the desirability of doing so outweighs the undesirability of admitting that evidence. In light of the defence in section 22(2), the Workplace Surveillance Act does not substantially alter the previous position that the monitoring of email and Internet use may be justified in the event of an employee viewing or distributing sexually explicit or otherwise inappropriate materials. See, for example, the judgment of Commissioner Foggo in Smith v Western Hospital [Print 1359], 2 June 1988. 5

In that case the employer’s surveillance of an employee’s email communications and Internet records was held to be justified by the employee’s history of viewing pornography on the internet.

Blocking emails or Internet access Section 17(4) of the Act prohibits the blocking of emails or Internet sites by employers in some circumstances, including blocking emails or access to websites “merely because: (a) the email was sent by or on behalf of an industrial organisation of employees or an officer of such an organisation, or (b) the website or email contains information relating to industrial matters (within the meaning of the Industrial Relations Act 1996).”. Section 17(2) requires an employer to notify employees if the employer prevents the delivery of an email "unless the email is spam (within the meaning of the Spam Act 2003 of the Commonwealth)," or if "the content of the email or any attachment to the email would or might have resulted in an unauthorised interference with, damage to or operation of a computer or computer network operated by the employer or of any program run by or data stored on such a computer or computer network," or if "the email or any attachment to the email would be regarded by reasonable persons as being, in all the circumstances, menacing, harassing or offensive."

Key considerations arising from the Act The key considerations for employers arising from the Workplace Surveillance Act include: - Employers must implement a policy regulating employee use of email and Internet facilities. - That policy must describe the nature of the surveillance that will be carried out. - The policy must be adequately notified to employees. - Notification should ideally occur by way of written notice on the computer of the employee when the employee logs on to the computer or the Internet or email program. - Employers should obtain the authority of a Magistrate prior to conducting covert surveillance of employee use of email or the Internet. - An authority to conduct covert surveillance will be constrained to the purpose of uncovering unlawful activity by the employee in the workplace. If an employer wishes to dismiss an employee on the basis of inappropriate conduct uncovered by the surveillance of the employee’s email and Internet usage, the employer’s policy should provide that summary dismissal may be a consequence of inappropriate use.

PART 3 Guide to an effective Email and Internet policy The Office of the Federal Privacy Commissioner has provided Guidelines on email and Internet usage in the workplace. The Guidelines focus on the protection of employee privacy. The Guidelines include:

1. The policy should be known and understood by staff. This sounds obvious but is significant. There is no point having a policy and not communicating it effectively to all staff. 2. The policy should be in plain English.

3. The policy should be explicit about what activities are permitted and prohibited. To say for example, that staff are not permitted to access inappropriate websites, is unhelpful. A clearer policy would indicate what materials will be considered inappropriate and also state what an 6

employee should do in the event that an inappropriate website is accessed, such as exit the site immediately and notify the person responsible for the company’s IT system.

4. The policy should clearly set out what information is logged and who in the organisation has rights to access the logs and content of staff email and browsing activities. Employees are likely to find it more useful for them to know who in the organisation can survey their email and Internet activity: whether surveillance is only conducted by IT staff or whether one’s immediate supervisor can also access the information. Employees may feel comfortable knowing that an IT employee may be able to access their records, whereas they may feel their privacy is compromised if their immediate boss can access their email communications. This importance of this Guideline will increase in light of the Workplace Surveillance Bill’s requirement that employers notify employees of the nature of the surveillance to which they are subject.

5. The policy should explain why the policy exists, including an explanation of the legal liability of the organisation for emails on its system . A good policy is not just about ensuring a Company’s compliance with the law. It’s also important to remember that the policy impacts on employee morale and employees’ trust and confidence in their employer. Explaining to employees why the employer monitors email and Internet use is likely to defuse a feeling of resentment or hostility an employee may experience about their ‘private’ activities being recorded and monitored. It is also likely to foster employee compliance with the policy. Ideally the policy should also inform employees whether information obtained from the surveillance will be used in the appraisal of their work performance.

Draft Email and Internet Policies A useful starting point for any employer wanting to create or update an email and Internet policy is a Model Policy created by Electronic Frontiers Australia (EFA). Tailoring the EFA Model Policy may be an efficient way to develop a company policy. Electronic Frontiers Australia is a non-profit organisation that was established in 1994 to protect and promote online civil liberties. As a consequence, the EFA’s model policy may contemplate a lower level of electronic surveillance than an employer may wish to use. See: < http://www.efa.org.au/Publish/aup.html>. The NSW Law Society has also developed a document entitled “A guideline to assist legal practices to construct a policy on the use and governance of electronic mail and world wide web access”. This document explains the principles and reasons underlying the terms of the provisions the Law Society suggests should be contained in an Employer policy about email and Internet use. The document is useful because it reminds practitioners of steps to be taken to fulfil the obligation to ensure legal professional privilege.

PART 4 Disciplinary action for Inappropriate use of Email and Internet facilities An employer’s surveillance of email and Internet usage may disclose conduct of an employee which the employer believes justifies the disciplining or dismissal of that employee. It is important for employers to remember, and for employees to appreciate, that the misuse or abuse of email or Internet facilities may not necessarily constitute of itself sufficient ground on which to summarily dismiss an employee. When an employer reprimands or dismisses an employee for misusing email or Internet facilities the employer should adhere to the standards of fairness that would otherwise apply when dismissing an employee for other forms of misconduct or poor performance. Section 170 CE(1)(a) of the Workplace Relations Act 1996 provides relief for employees whose termination of employment is found to be “harsh, unjust or unreasonable”. In Windsor Smith v Liu and Others [Print Q3462] a Full Bench of the AIRC stated: “The question of whether there was a valid reason for the termination of employment is no longer the critical question in determining -whether the termination was contrary to the Act … Under the Workplace Relations Act 1996, the principal question is whether the 7

termination was harsh, unjust or unreasonable. In considering that question, the Commission is to ensure that a "fair go all round" is accorded to both the employer and the employee concerned." Both substantive and procedural fairness are significant in the determination of whether the dismissal of an employee was harsh, unjust or unreasonable: Bostik (Aust) Pty Limited v Gorgevski 1992 AILR 18, although where the conduct said to justify the dismissal was gross or obvious, an Industrial Commission is likely to place less weight on whether all elements of procedural fairness were afforded to the employee: Dickinson v Woolworths Safeway Pty Limited 1995 AIRL 7-012.

Substantive Fairness relevant to dismissing an employee for email and internet abuse Evidence of wrongdoing A Full Bench of the AIRC held in Michael King v Freshmore (Vic) Pty Limited (Print S4213, paras 2324) that where there is dispute between the parties that the alleged misconduct occurred, the Commission must determine whether the conduct occurred. It is not sufficient to determine whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. In Harvey v Qantas Airways Ltd [PR926844], AIRC, 20 January 2003, Commissioner Hodder affirmed the Commission will determine whether disputed allegations of misconduct took place, not merely whether the employer reasonably believed that the misconduct had occurred. The case concerned an employee who was dismissed after it was discovered that he used the company’s email system to purchase illegal drugs. It was also alleged by the employer that he conducted an excessive level of personal email. Consistent or inconsistent enforcement of company policy Consistent application of company policy is also a relevant consideration to whether the dismissal of an employee is harsh, unjust or unreasonable. The case of Agnew & Ors v Nationwide News Pty Ltd [PR 927597], 11 February 2003, concerned a number of printers who were dismissed because they breached the company’s policy prohibiting the drinking of alcohol at lunch time. The workers were held to have been unfairly dismissed, and were reinstated, despite the Commissioner finding that there was “nothing” in the employer’s process leading to the termination of the workers that “might draw any criticism”. The dismissal of the workers was nonetheless held to have breached s170CE of the Workplace Relations Act, in part, because the dismissal was harsh given the long service of the workers, the nature of the offence and the inconsistent application and enforcement of the company’s policy. A wide range of unreported cases confirm that the dismissal of an employee will be held to be harsh, unjust or unreasonable if the dismissal ‘singles out’ that employee, see Trapp v Roads and Traffic Authority of New South Wales; Mayhew v RTA of NSW (unrep: No7486 &7487 of 2001, NSWIRC 14 June 2002). Also in Burrows and Anor v Commissioner of Police (2001) NSWIRComm 333, Justice Boland of this honourable Commission found that numerous police officers, including the applicant in that case, had received and disseminated pornographic material which was found to be ‘disgusting and revolting‘, even after having received a specific memo on how the electronic mail system was to be used, but that whilst Mr Burrows was removed from his position, others were not. It was also noted that Mr Burrows had past good conduct, and that the personal and economic consequences of removing Mr Burrows were too harsh (at [146] and [224]). Justice Boland re-instated Mr Burrows on terms no less favourable than if he had not been removed from the Police Service. Policy not morality The common law to date strongly indicates that the Commission will focus on whether an employee has breached the employer’s policy in relation to email and Internet usage, not whether the employee’s behaviour was immoral or offensive. For this reason it is vital that an employer have a policy that sets out the standards of acceptable use of email and Internet facilities in addition setting out the surveillance to which the employee may be subjected. 8

In an AIRC case a fortnight ago, Deputy President Brian Lacy held the dismissal of a Victoria’s Country Fire Authority employee was harsh, unjust or unreasonable under s170CE, in part because the employee’s conduct did not breach the Country Fire Authority’s policy. The case concerned, in part, a pornographic image that the employee admitted to having stored on his hard drive. Deputy President Lacy found the storage of the image did not breach the Country Fire’s policy, which only prohibited the use of sexually explicit material in a way that constitutes discrimination, harassment or victimisation. “Inappropriate though it may be, it is not, in my view, a valid reason for termination of employment in the absence of evidence of actual offence or a direction or policy prohibiting such acts.” Bernard Reynolds v Country Fire Authority [PR950786], 13 August 2004 In Massoud v SITEL Corporation Australia Pty Limited [2001] NSWIR Comm 218 NSW, a female applicant was dismissed on the basis of fraud and theft. The Respondent raised allegations of downloading, storing and transmitting by email sexually explicit material as further justification for dismissing the applicant. Commissioner Grayson stated at 39, “It is the Commission’s function not to grade the levels of offensiveness of such material but rather to discover whether on the evidence, it was material in which the applicant trafficked in direct contravention of the respondent’s reasonable and lawful direction.” Similarly, in Toyota Motor Corporation v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [Print T4675] AIRC, 18 December 2002, Deputy President Watson focused on whether two employees had breached company policy when determining whether their summary dismissal was harsh, unjust or unreasonable. The employees were found to have viewed, distributed and stored pornography on their work computers. Toyota’s policy stipulated that emails were not private communications and could be viewed by the company at any time. Deputy President Watson held that the dismissals were not in breach of s170CE of the Workplace Relations Act. It was significant in Toyota, that the employees had been notified of the policy by way of “pop-up screens” at the beginning of each month. Similarly, in Bassam Darwich v Kaal Australia Pty Limited [PR 934439], 8 July 2003, pop-up screens containing the company’s Internet policy were held to have been sufficient notice to the employee of that policy. In Bassam, the applicant was dismissed for downloading and distributing pornography. As a matter of fairness, it is advisable for an employer’s policy to indicate to employees what type of breach may lead to termination. However, when providing examples to employees of what type of breach may lead to termination, employers must take care to emphasise that the examples provided are intended as a guide to employees and are not an exhaustive list of breaches which may result in termination. Internet Pornography cases In the case of Michael Harrington v Phillip Morris Limited (AIRC decision 13 March 2002 ref PR 915206) an employee of 16 years, whose alleged misconduct included accessing pornographic internet sites in breach of company policy, was re-instated without loss of income. The employee admitted breaching the company computer policy on accessing internet sites, but denied accessing pornographic sites. It was held that, even if the employee had accessed such sites, that dismissal was out of proportion to the alleged offence. In that case, it was also noted that other employees had committed the same misconduct and had received a warning, and that the employee had a good service history (see paragraphs [46 to [53]). In the case of Saric v Pacific Access (AIRC decision 9 January 2003, ref PR 926488) an employee of about 5 years standing was re-instated by the AIRC, and it was indicated that it was appropriate that no remuneration be lost, where the employee did not delete emails with pornographic contents in breach of company policy, finding that, although a warning may have been warranted, dismissal was too harsh a penalty (see paragraphs [77] to [88]). Further, in Saric, it was also noted that the company was a large employer with dedicated human resources staff, who could avoid a similar situation arising in the future (at [83]).

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Procedural Fairness and dismissing an employee for abuse of email and Internet facilities Many considerations are relevant to whether an employee has been afforded procedural fairness, including: The employer must conduct adequate investigation into the circumstances in which the breach of policy occurred: Gorgevski v Bostik (Aust) Pty Ltd 1991 AILR 355 (upheld on appeal: 1992 AIRL 186). Was the employee provided with an opportunity to respond? A fundamental element of procedural fairness is that a person be given the opportunity to know the allegations against him or her and be afforded an opportunity to make out a defence: Nicholson v Heaven & Earth Gallery per Justice Wilcox of the Industrial Relations Court of Australia 57 IR 50 at 60. Was the employee afforded the opportunity to have a witness present? It is strongly advisable for an employer to afford a person accused of misconduct the opportunity to have a witness present at any meeting in which the person may be required to respond to allegations against him or her. Size of the employer: the size of the employer is also a relevant factor in whether the dismissal process lacked procedural fairness so as to render the dismissal in breach of s170CE: Antonakopoulos v State Bank of NSW 91 IR 385 at 392. A Potential Complication to Consider: Consistency with the broader workplace culture An issue yet to be fully assessed is the question of whether an employer can summarily dismiss an employee on the basis that the employee accessed and distributed inappropriate material if that behaviour is consistent with the broader workplace culture. The issue was raised in Bassam Darwich v Kaal Australia Pty Limited [PR 934439], 8 July 2003. The applicant was dismissed after downloading pornography from the Internet and emailing it to other employees. The applicant claimed that the workplace was very “blokey” and that there were pornographic magazines lying around in drawers and filing cabinets. The applicant submitted that the magazines were read openly and with implicit consent of management. The applicant acknowledged that his conduct breached the company’s policy in regard to email and Internet use, but argued that it was harsh, unjust or unreasonable under s170CE of the Workplace Relations Act 1996 to terminate him for engaging in behaviour that was the electronic equivalent of an another common and accepted practice in his workplace. Unfortunately, this issue became moot in this case as Senior Deputy President Duncan rejected the applicant’s evidence that pornographic literature was freely available in the workplace. Similar matters in future will be viewed with great interest. Workplace culture was also discussed in P. Micallef v Holden Ltd PR900664, 25 January 2001 at [11] where the Commission stated: "I do not accept that the existence of a culture, the manifestations of which the respondent has made clear are not acceptable, diminishes the inappropriateness of the applicant's conduct." Conclusion This presentation has assessed the provisions of the Workplace Surveillance Act that affect the manner and extent to which employers may monitor employee use of Internet and email facilities in the workplace. The Act prevents employers from using covert surveillance to gather information to use in the performance appraisal of employees, but preserves the right of employers to conduct surveillance of employee email and Internet usage for all purposes, so long as employees are adequately notified of the surveillance. Consequently, it is critical for employers to notify employees of the monitoring of which their emails and Internet use are subject.

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Aaron Magner Legal Counsel

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