Employers that implement monitoring without gaining written consent from staff would be in a compromised legal position should they sack a staff member over Internet access or e-mail.
-They [workers] might well have cause for unfair dismissal in the industrial relations jurisdiction," said New South Wales Privacy Commissioner Chris Puplick when asked about workers' rights in the event they were sacked without warning for abusing Internet access.
Computer civil liberties group Electronic Frontiers Australia agreed, saying employees must be told if they are being monitored and what constitutes accepted practice. -To say: 'well, we gave you unbridled Internet access, and we didn't tell you what you could and couldn't do, but now that you've decided to download a picture of a naked woman, we're going to give you the sack', this is not good industrial practice," said EFA chairman Kimberley Heitman. -You are likely to see wrongful dismissal suits brought under these circumstances."
With office Internet access growing, companies have implemented tracking software such as WebSpy to monitor e-mails and Internet usage for productivity and security reasons.
Although stressing that, to his knowledge, no unfair dismissal cases had been brought yet, a spokesperson for the Workplace Relations and Small Business office said his department would investigate such matters if they arose. The EFA's position on this -is that you can use the Internet access in the same way you use the telephone," said Heitman. -You can use it for personal business to the extent that it doesn't infringe upon your work and that you can expect that the telecommunications act applies and your communications are private.
-If you're in a workplace that this isn't going to be the rule, in my view, it is something that should be declared up front and in writing with employees being required to sign an acceptable use policy for Internet access. The difficulty arises when the employee doesn't knowââ,¬"because in the usual course of events, although you are working, you are able to keep your privacy. You're able to make phone calls to your mum without losing your job."
Proposed legislation, already active in the public sector, looks set to provide guidelines for what constitutes acceptable practice, but this is unlikely to take effect in the private sector until the middle of the year at the earliest.
