Late in the evening a senior Commonwealth public servant, in the privacy of his own home, used his own internet connection to access and view pornography on the internet. He did so using a laptop computer provided by his employer.
The employer, after conducting an audit of computer usage, discovered the employee’s late night activities and terminated his employment for accessing pornography on the office laptop. There was no suggestion that the material which the employee had viewed was in any way unlawful or that he had distributed or shown the pornography to any other employees.
The employee argued that his privacy had been grossly invaded by the employer by the use of software to monitor his browsing habits during his own personal time. He also argued that the requirement of the department’s IT policy not to view pornography was not a lawful reason for termination because it invaded his privacy to the extent that the manager of the department monitored his personal usage of the laptop and no legitimate interest of the employer was protected as a result of such monitoring.
In reply the Commonwealth department said that since it owned the laptop, it had a right to regulate how it was used and to insist that it not be used to view pornography, irrespective of when this took place or how the pornography was accessed. It maintained that it had a legitimate interest in ensuring that its equipment did not come into contact with pornography so that the pornography may not accidentally reappear or be displayed within a workplace. The employer had previously warned all employees that viewing of this type of material risked their employment being terminated.
Whilst the employer recognised that the employee had a right to privacy, it argued that it did not mean that the employee had the right to use the department’s computer contrary to the expressed instructions not to view pornography even if it was outside of work hours, in the privacy of his own home and was accessed by using the employee’s personal internet connection.
The Federal Court of Australia, in upholding the employer’s decision to terminate the employee’s employment, confirmed that it is not a breach of privacy for an employer to monitor an employee’s use of the employer’s computer equipment, if the employee has been warned that such monitoring may take place.
Whilst the Court’s decision confirms the right of an employer to check an employee’s emails and internet browsing habits, it also emphasised that employers need to take care to ensure that their IT usage policies clearly spell out that monitoring will take place, the consequences for a breach of that policy and are broad enough to cover all types of personal information that may be collected in the course of undertaking such monitoring activities.
Should you wish to know more about this topic please contact either Ian Curlewis, Partner on (08) 9288 6756 / ian.curlewis@lavanlegal.com.au or Michael Jensen, Senior Associate, on (08) 9288 6944 / michael.jensen@lavanlegal.com.au.
