Legal Briefing No. 58

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)

For
enquiries regarding supply of issues of the Briefing,
change of address details etc,
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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