An employee who was summarily dismissed from a removalist and storage company for dishonesty and breaching trust has had her unfair dismissal claim thrown out by Fair Work Australia. Notably, her dishonest conduct came to light after her employer became suspicious and reviewed her work emails.
The case in point involved an employee booking flights from her home in Sydney to Perth, missing 3 days of the work week. The employee failed to inform her manager of her plans and instead obtained a medical certificate, related to an ongoing medical condition, for the three days she would be absent. Yet unbeknownst to the employee, the manager had inadvertently become aware of her travel plans.
During the employee’s absence, the manager reviewed the employee’s emails and discovered correspondence between the employee and her son about the Perth trip, including an instruction to the son to direct trip-related emails to her personal address instead. Upon the employee’s return, the manager presented his evidence to the employee in a meeting, and in the absence of no reasonable explanation, summarily dismissed her. Fair Work Australia Commissioner Donna McKenna dismissed the employee’s unfair dismissal appeal, finding that while the employee’s medical certificate was genuine, the decision to dismiss was reasonable based on lawful evidence and the employee’s failure to disclose her plans to be absent from work for three days.
Shana Schreier-Joffe from Harmers Workplace Lawyers said it is legal for employers to monitor email and web usage.
Employer’s rights in checking employee emails
Employers are within their rights to view their employees' emails, as long as they give written notice or have a policy of surveillance.
Australian Privacy Acts to do not protect employees from computer surveillance, or restrict surveillances – all the Acts require is that notice of surveillance must be given.
In New South Wales, for example, this surveillance is governed by the Workplace Surveillance Act 2005 that imposes on employers a requirement to provide employees with at least 14 days' written notice before undertaking such surveillance.
E-mails are hard to destroy. Many people think that if they delete their e-mail it is gone forever. This is not so as most electronic documents are backed up and recoverable.
Where an employee has left the employ of the business, the employer has every right to have that employee's emails redirected to the relevant department or person until the email address has been deactivated.
Accessing emails from an employee's own personal and private email account, like Hotmail or Gmail, would be an invasion of privacy, even though the company machinery and internet provider has been used.
Reasons why an employer might legitimately want to examine an employee's work emails would be around suspected inappropriate use of the company's email system, like disseminating pornography, conducting fraud or breaching confidentiality or trust. More controversial uses of surveillance would be to measure performance or behaviour.
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