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Australian Government Solicitor

 

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Legal Briefing  

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Legal Briefing

Number 58

27 February 2001

Misconduct in E-mail and Internet Use at Work

Commonwealth departments and agencies have implemented extensive use of computers in the workplace in the last decade to the point where most staff have desktop computers.

This has led to many efficiencies, but there are legal issues to consider. Departments and agencies have responsibility for administering their computer systems and are at risk if they do not regulate e-mail and Internet use.

Implications for Clients

Misuse by staff of the computer facilities of their department or agency may have a number of adverse effects, for example:

  • other staff may be exposed to pornography, racist propaganda or other offensive material leading to a discrimination or harassment claim against the employer
  • loss of productivity
  • legal liability for the contents of e-mails distributed to third parties.

Clear and practical policies in relation to computer use along with appropriate directions to staff are recommended.

Misconduct

The Public Service Act 1999 ('PSA') sets out Values and a Code of Conduct for all APS employees (ss10, 13). This provides the framework for managers but does not attempt to cover all situations in detail. The Act provides flexibility for agencies to formulate policies to suit their needs.

The Values and Code of Conduct are stated in broad terms. It is clear that e-mail and Internet use, for personal non-work related purposes, may constitute a breach of the Code of Conduct. For example, s.13(8) of the Code of Conduct requires that employees use Commonwealth resources in a proper manner; s.13(3) that APS employees treat everyone with respect and courtesy and without harassment and s.13(4) requires compliance with all applicable Australian laws.

Section 13(5) provides that an employee must comply with a 'lawful and reasonable direction'. This provides a mechanism for managers to provide specific directions to employees about use of computer facilities.

An agency head must establish procedures to determine a breach of the Code of Conduct (s.15(3)) and these procedures must be in accordance with the Public Service Commissioner's Directions 1999. Chapter 5 of these Directions sets out the basic requirements for the procedures and is aimed at ensuring that each agency complies with the requirements of procedural fairness.

An agency head may impose a sanction for a breach of the Code of Conduct (s.15), namely:

  • termination of employment
  • reduction in salary or classification
  • reassignment of duties
  • a fine or a reprimand.

Review by the Merit Protection Commission is available (s.33), except in the case of termination of employment where the provisions of the Workplace Relations Act 1996 ('WRA')apply.

Termination of Employment

This is governed by the provisions of the WRA. The PSA is made subject to the WRA (s.8 of the WRA). Section 170CE of the WRA provides that an employee whose employment has been terminated by the employer may apply to the Australian Industrial Relations Commission on the ground that the termination was harsh, unjust or unreasonable.

Employers should be mindful that they may be exposed to an unfair dismissal action in enforcing anti-discrimination laws or other management rules by dismissing an employee who has misused computer facilities.

The object of the WRA is to provide a 'fair go all round' to both the employee and the employer (s.170CA(2)).

This means that employers can have regard to their obligations to prevent discrimination against another person, to provide a safe workplace and to protect whistleblowers, but must also account for the interests of the employee whose employment may be terminated.

The employer should be both substantively and procedurally fair.

Commonwealth Anti-discrimination Legislation

Employers have responsibilities to uphold relevant anti-discrimination legislation and are obliged to take proactive steps to prevent discrimination. For example, if an employee uses their employer's e-mail system to harass another person, the employer may be liable unless they have taken 'all reasonable steps' to prevent it. The existence and enforcement of appropriate policies is a good start in establishing a 'reasonable steps' defence.

The Sex Discrimination Act 1984 (SDA) makes it unlawful for a person to sexually harass a fellow employee (s.28B(2)). The Racial Discrimination Act 1975 (RDA) makes it unlawful for a person to discriminate against or harass another on the ground of race, colour, descent or national or ethnic origin (ss.9,15). It also prohibits offensive behaviour based on racial hatred (Part IIA).

Both the SDA and the RDA make an employer vicariously liable for acts of unlawful discrimination or harassment committed by one employee against another person unless 'all reasonable steps' have been taken by the employer to prevent it (s.106 SDA, s.18A RDA).

In Horne & Anor v Press Clough Joint Venture & Anor (1994) EOC 92–591 the Equal Opportunity Commission of Western Australia found an employer vicariously liable for the harassment of two female employees. The employees worked in an area where there were numerous pornographic posters on display and the employer had not prevented this. The same principle would apply in the case of an employee displaying pornography on a computer screen or distributing it by e-mail to another employee, certainly where the employer has some reason to suspect it may happen and takes no steps to stop it.

It is also important to note that if rules are not enforced in a uniform way, a claim of discrimination may result. This can arise where an employer has a blanket policy to ban all personal use of computer facilities but only enforces it against some employees.

Examples of Misuse

Pornography

There have been a number of cases where misuse of computer facilities has led to dismissal for the offending employee. Simply accessing pornography may not be enough to justify dismissal, although it may be where the employer has a clear policy and directions warning employees of the prospect of dismissal. In the decided cases to date there have been additional considerations. For example extensive misuse of computer facilities, misuse by a person in a position of trust or with malevolent intent or conduct which amounted to harassment of other employees.

The Australian Industrial Relations Commission in Smith v Western Hospital (Print Q1359) found that an employee who had accessed pornography on the Internet had been validly dismissed. Commissioner Foggo said that in his opinion merely accessing pornography was 'sufficient reason for instant dismissal.' However the Commissioner also relied on the fact that the employee was a supervisor and had accessed the pornography extensively (the employee admitted that he had become 'hooked' on the sites).

In Ueckert v Australian Water Technologies Pty Ltd (2000) NSWIRC 123 reinstatement was unsuccessfully sought by Mr Ueckert, who asserted that his dismissal had been harsh, unreasonable or unjust under NSW industrial relations legislation.
A complaint had been lodged by fellow employees who felt intimidated and unsafe in the workplace because of his alleged sexual harassment of them. Part of this complaint was that Mr Ueckert had exposed them to pornography that he had accessed from the Internet and had displayed on his screen in their presence. He also had a pornographic game which he played and which could be heard as well as seen by the complainants. It was found that his conduct constituted sexual harassment and intimidation. He attempted to argue that the sites had been accessed accidentally. However, the employer obtained a report by a consultant as to Mr Ueckert's Internet use which identified the number of times the employee accessed pornographic sites and the amount of time he spent logged into these sites. It was established that this amounted to above average access to these sites.

It was held that failure to dismiss him may have indeed been a breach of the Occupational Health and Safety Act 1983 (NSW). There are similar provisions in the Commonwealth legislation which require the workplace to be safe, see the Occupational Health and Safety (Commonwealth Employment) Act 1991. In addition, APS Values states that '...the APS provides a fair, flexible, safe and rewarding workplace' (s.10(l)(j) of the PSA) (emphasis added).

In Kenny v Epic Energy (15 November 1999) the Australian Industrial Relations Commission dismissed an application by an employee under s.170CE of the WRA after his employment was terminated for accessing pornographic sites contrary to the company's Internet policy. Mr Kenny was the company's IT Manager. He had accessed these sites on 6 occasions over a period of 7 months from his home computer by using the company's account. His response was that his wife had accidentally accessed these sites. The Commission found that he had either accessed the sites himself or created an environment in which others could do so.

The Commission noted that if Mr Kenny had been a more junior employee then a less severe approach may have been appropriate. Further, if Mr Kenny had only contravened the policy on a single occasion it may have looked at the matter differently and accepted that the contravention had been inadvertent.

The Commission noted that its decision was not based on the morality of accessing pornographic sites in the home but solely 'on the employer's right to place rules and constraints on the use of its assets'.

It is also relevant to note that employees accessing pornographic sites may be committing an offence under state laws, for example the Classification (Publications, Films & Computer Games) (Enforcement) Act 1995 (Vic) which prohibits accessing and downloading objectionable material. Employers should draw the attention of employees to any relevant state legislation in any policy or directions issued.

Union Related Activities

The recent Federal Court case of AMACSU v Ansett Australia Ltd (2000) FCA 441 demonstrates the need for particular care where an employee is disciplined for activities associated with trade union activities. Justice Merkel found that dismissal of the employee, Ms Gencarelli, breached the freedom of association provisions in the WRA.

Ms Gencarelli was employed by Ansett and was a member and delegate of the union. She distributed a union bulletin via e-mail to members advising of the outcome of a meeting between the union and Ansett regarding enterprise bargaining. Her employment was then terminated by Ansett on the ground that her distribution of the e-mail constituted misconduct.

Ansett's policy regarding e-mail use was that it must be 'for the purpose of performing authorised lawful business activities'. Justice Merkel said that as Ansett had entered into an agreement with the union to have a Joint Work Group to discuss employment issues it was important to communicate the outcomes of meetings to the employees. He took the view that Ms Gencarelli's use of the e-mail system to distribute such information was impliedly within the policy, being for authorised, lawful business purposes.

Justice Merkel emphasised the importance of procedural fairness. He found the employee who dismissed Ms Gencarelli on behalf of Ansett had done so without adhering to its procedures regarding investigation of misconduct in the workplace as he had not referred to the IT Policy directly when conducting his investigation.

Ansett had a Code of Ethics which it relied upon. The Code provided that Ansett assets should not be used for improper purposes. He found that Ansett's reliance on the Code of Ethics was unconvincing.

Justice Merkel found further that the dismissal breached the 'freedom of association' provisions in Part XA of the WRA as Ms Gencarelli had been dismissed because of her position as a workplace delegate. As a result Ansett was liable to a penalty.

Evidence Requirements

It is recommended that agencies give careful consideration to how evidence of misconduct is gathered and considered. This is particularly important where the misconduct may result in a serious sanction.

The best evidence is always direct, that is, information from those who have witnessed the events. The witness should be able to state 'when', 'where' and 'what' was said or happened. Again, documentary records may be available, for example, in the form of computer records. The employee concerned should in most cases be interviewed and allegations put to that person. It will of course greatly assist in justifying any action if clear written statements are obtained.

In Chambers v James Cook University of North Queensland (1995) 61 IR 121 two students of the university alleged that Dr Chambers, a Senior Lecturer in Theatre, had sexually harassed them during teaching sessions at the university. It was alleged that he had taken 'inappropriate physical liberties and made verbal and physical sexual approaches' and that he had been aggressive 'almost to the point of physical violence'. In accordance with its Sexual Harassment Grievance policy, the university appointed a committee to investigate the complaint. The committee found that all the allegations were made out and subsequently made a report to the Vice-Chancellor which led to dismissal.

Dr Chambers applied for a review. The case was heard by Spender J of the Industrial Relations Court. The Judge said that sexual harassment is a matter of fact and that in this area there is a 'large measure of genuine and justified public concern'. However, he said that decisions cannot be made on the basis of 'mass opinion or public acclaim' and proceeded to a detailed review of the evidence. This led him to the conclusion that even though Dr Chambers had sexual intercourse with the students on a number of occasions, it had been consensual and without coercion or exploitation. He said that if the university wishes to assert that any act of sexual intercourse between lecturer and student, regardless of the circumstances, warrants dismissal, then this ought be the subject of an express policy – he noted such a policy would itself engender considerable debate. The Court ordered that Dr Chambers be reinstated and that lost remuneration be paid to him.

Privacy Considerations

Agencies must comply with the Privacy Act 1988 in relation to e-mail and Internet use. The Privacy Commission has published Guidelines on Workplace E-mail, Web Browsing and Privacy (30 March 2000). The Commission encourages organisations to develop in consultation with staff a clear privacy policy in relation to staff use of computer networks. In brief terms, the Guidelines point out that use of e-mail and Internet facilities has only an 'illusion' of privacy as records are often scrutinized; that informing people as to what is collected and what is done with it is an important privacy principle; and that e-mail often contains personal information and agencies have responsibilities as to storage and disclosure under the Information Privacy Principles.

The Guidelines can be found at http://www.privacy.gov.au/issues/p7_4.html.

Implementation Checklist

Agencies are likely to meet requirements of good management and legal requirements in regulating the use of computer facilities if they:

  • create a clear Internet and e-mail policy and issue directions concerning compliance
  • distribute the policy and directions to all staff and ensure that they are understood
  • identify with specificity the type of personal access allowed, both as to the time, duration and sites permitted – statements such as for 'work-related purposes' may be too general
  • explain to staff how misuse impacts on productivity
  • inform staff that e-mail and Internet use is not secure or private even if it is deleted and explain how it is being monitored
  • explain how misuse may impact on the legal liability of the organisation and the reputation of the organisation
  • explain enforcement methods, that is, if all e-mail and Internet use by all employees will be audited at regular intervals, whether it will be by random checks, or whether it will be only when a complaint is received
  • warn staff about the consequences of contravention and the possibility of termination of employment
  • gather evidence of possible breaches carefully
  • administer the policy and directions in a consistent way and update the documents when necessary
  • explain the obligations under anti-discrimination legislation giving examples
  • ensure staff attend appropriate training and keep records of who attends.

 

For further information please contact Stephen Lucas of our Melbourne office on telephone (03) 9242 1200 or e-mail stephen.lucas@ags.gov.au, or any of the following lawyers:

Canberra          

Joan Bonsey
Tom Howe
Paul Vermeesch

(02) 6246 1233
(02) 6246 1256
(02) 6246 1202

Sydney

Andras Markus
Jim Heard

(02) 9581 7472
(02) 9581 7477

Melbourne

Craig Rawson

(03) 9242 1257

Brisbane

Maurice Swan

(07) 3360 5702

Perth

Peter Corbould

(08) 9268 1158

Adelaide      

Sarah Court

(08) 8205 4231

Hobart

Peter Bowen

(03) 6220 5474

Darwin

Rick Andruszko

(08) 8943 1400

                   

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

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Tel: (02) 6253 7052 or Fax: (02) 6253 7313 or e-mail: publications@ags.gov.au.
                      

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing.

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