When personal devices come with pitfalls

Technology can blur the lines between leisure and work. IEU VicTas Industrial Officers Gretta Nicholls and Jessica Mekhael examine the issues – including the potential for surveillance.

The pandemic has given rise to a proliferation of working from home, and with this comes both the use of workplace devices for personal use and using personal devices on a work platform. And both come with potential problems.

Employers are increasingly relying on surveillance through electronic devices to keep an eye on employees. This includes the personal use of employer-provided devices such as laptops and phones for purposes that are not work related; for example, an employee shopping online on a work laptop during work time.

Employers are also monitoring employees’ use of their own personal devices that use work-provided platforms, such as a personal mobile phone connected to the workplace internet.

In both examples – and subject to the applicable legislation – the employer may be able to rely on the information obtained from monitoring a personal or work-provided device to take disciplinary action against employees.

What the law says

In Australia, there are no blanket laws regarding workplace surveillance. Instead, there is a complex web of state and federal laws that have not adapted to the reality of technological advances and ever-increasing flexible work arrangements arising in our workplaces.

Laws governing surveillance in the workplace differ between the states. Only NSW and the ACT have specific legislation dedicated to dealing with workplace surveillance (Workplace Surveillance Act 2005 (NSW), and Workplace Privacy Act 2011 (ACT)). In these jurisdictions, an employer must give 14 days’ notice prior to workplace surveillance being undertaken, and there is a requirement that the surveillance accord with workplace policies.

The use of electronic devices for workplace surveillance in other states is covered by general privacy and surveillance laws. For example, in Victoria, the Surveillance Devices Act 1999 (Vic) regulates the use of surveillance devices in general; however, the only specific regulation it provides in relation to workplaces is the prohibition on certain devices being used in bathrooms.

This leaves the use of surveillance devices on employees largely to general laws governing surveillance and relevant employment law. For example, the use of surveillance devices and the storage of that data may also be incorporated into employment contracts, enterprise agreements and workplace policies.

Emerging issues

Broadly speaking, there are two main categories of issues that arise in the use of technology connected to the workplace that may create contention between employers and employees: use of a work-provided device for personal use; and use of a personal device on a workplace platform.

If an employee engages in activity on a work device or workplace internet, and that activity is either prohibited by a workplace instrument or is illegal, it is most likely the employee will face disciplinary action or other consequences if the employer becomes aware of that activity.

Most employees will understand that where the online activity engaged in is illegal – for example, accessing material that is clearly prohibited under Australian law – this will result in a decisive course of action, most likely termination of employment.

Employees may be less discerning about putting their employment at risk where they use a workplace device or workplace internet to look at material that is not illegal. However, this may conflict with the employer’s views or beliefs.

For instance, if an employer had a strict policy or term of employment in respect of adherence to religious beliefs prohibiting divorce or parenthood planning – and an employee were to search for such materials or purchase products online using the work internet or work device – then despite the conduct not being illegal, it may still be open to the employer to discipline an employee in these circumstances.

If this does occur, the course of action and outcome will be closely linked to the terms of any workplace policy, industrial instrument or employment contract.

Case in point

In a case before the NSW Industrial Relations Commission, an employee was dismissed by her employer for breaches of the code of conduct and communications policy.

In the case of Bellenger v Mid North Coast Local Health District [2017] NSWIRComm 1019, Bellenger was dismissed after an investigation found she had used the employer’s email system inappropriately. A review of her work email directory found she had received, stored and sent significant quantities of emails that were considered pornographic, graphic (violence), and generally inappropriate in nature.

A personal journal unrelated to work was also found on the work device and this was found to be in breach of the employer’s policy on personal use. It was also found to have “encroached on work time” despite the employee contending that she had worked regularly beyond the standard hours of work, took work home and worked at home on weekends.

The employer had a Code of Conduct which, among other things, stipulated that work resources and equipment must be used lawfully, efficiently and only as authorised. It was found that the emails and storing of pornographic and graphic (violence) material, and material that was generally inappropriate in nature, as well as the personal journal, were in breach of the relevant policy and constituted a valid reason for her dismissal.

Minimising the risks

To mitigate risks for employees while using a workplace device or workplace internet, Lachlan Jarvis from Lyonswood Investigations and Forensics suggests:

  • that the employer provide electronic devices to employees for work-related use and provide clear instructions on any limitations or restrictions in their use
  • that the employment contract stipulates the terms of any workplace surveillance
  • that a clear workplace device surveillance policy is developed in consultation with employees.

In addition, employees should be mindful about connecting to the workplace internet on a personal device, such as their mobile phone. In certain circumstances, the employer can monitor an employee’s internet use through the employer’s internet router.

Employees should keep in mind that any device supplied by the employer is the employer’s property, and the employer can forensically examine this device.

Industrial Officers Gretta Nicholls and Jessica Mekhael are based in the IEU’s Victoria Tasmania Branch

If you are an IEU member, and you would like advice or assistance on any issues raised in this article, please contact your state or territory branch.