Employment and Migration Blog

Can you access your employee’s emails and more importantly use them as evidence for the purpose of performance management or disciplinary action?

Posted by Anna Ford on 25 Nov 2014

The rules relating to surveillance, including workplace surveillance, vary from state to state.

In NSW for example, reference should be had to the Workplace Surveillance Act 2005 [NSW] (“the Act”). The Act sets out the rules relating to an employer’s use of technology including computers, cameras and tracking devices, to monitor employees, and it prohibits the surveillance of employees at work, unless employees have been given notice.

Under the Act, written notice must be given at least 14 days prior to any surveillance commencing and the notice must indicate:

  • the kind of surveillance to be carried out (e.g. computer, camera or tracking);
  • how the surveillance will be carried out;
  • when the surveillance will start;
  • whether the surveillance will be continued or intermittent; and
  • whether the surveillance will be for a specified limited period or otherwise.

(Note: there are additional requirements that need to be complied with in relation to camera / video surveillance)

For new starters, notice must be given before they commence employment.

What does this mean for your organisation?

If you have not put in place a policy that states that the email and computer system your employees are operating belong to you as the employer, and as such, you have a right to monitor their use of both systems, you should not be accessing this information. More importantly, you should not be seeking to rely on such information to impose any sort of performance management or disciplinary action.

This means all workplaces need an up to date ‘Email and Internet Policy’!

If your workplace does not have such a policy or it has not be reviewed recently, please contact our employment law team who will be able assist in ensuring your workplace is compliant with all its workplace surveillance obligations.
 
For more advice on workplace policies please contact: