Policies and procedures
Tuesday, 11 December 2007
Last Updated: Friday, 14 December 2007
In this section:
Scope
This policy applies to all staff, and the broadest description of technology and communication is implied in this policy; that is, it applies to all forms of electronic communication, including mobile phones, telephones, email, surfing the net, internet searches, blogs, MyMail and similar sites, podcast, chat rooms, and others.
Definitions
Blog – Also called a web log, is usually a collection of short articles or personal thoughts, written by one person. These typically link to other websites and blog postings, and can be read by anyone who visits the page.
Policy
Technology and a wide variety of communication methods are provided and accessible through the organisation’s network and operations environment to enable the business to be effective and productive, delivering numerous products and services to both external and internal customers.
Electronic mail is a significant method of communication and, for official purposes, items sent by email will be considered to be equivalent to those sent in writing.
All staff are required to read their emails regularly to ensure that important information is received and responded to in a timely manner. Approval from senior management must be gained prior to sending broadcast emails or participating in or contributing to blogs.
Computer and internet access is provided to all employees in order to perform work and it is not provided for the personal recreational or personal business use of employees. The computer systems and information contained in those systems belong to the employer. The organisation will monitor the emails and internet usage of all employees. Access to the service will be terminated when the user ceases to be an employee.
Basic computer literacy and a willingness to use other technology and communication methods to maximum advantage are prerequisites for entry to employment opportunities and employment in this organisation.
Senders, recipients and managers of electronic mail systems are to exercise due diligence to ensure the protection of confidential communications.
The organisation reserves the right to block or terminate a user’s access if there is a practice or information which is not in accordance with organisational policy or where a critical risk has been identified which is causing performance or security issues.
Company telephones, mobile phones and computers are provided to employees for business use only. Personal usage must be kept to a minimum. This organisation reserves the right to charge employees for excessive use of mobile phones. Any damage to company-owned mobile phones or computers must be reported immediately to the line manager.
This is a new HR resource from the VECCI HR Toolkit
For more sample policies plus sample HR forms, letters and checklists contact VECCI Publications. publications@vecci.org.au.
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By Peter Vitale
We all know that time is money for owners and managers of SMEs and tasks like implementing HR policies can swallow up a lot of time. But it’s worth considering the downside of not having proper employment policies in place, and computers provide a perfect example of how it can all go wrong.
Most managers of SMEs would be able to identify that pinning up pictures of pornography or nudity in the workplace might expose the business, and individuals concerned, to a claim of sexual harassment. But the explicit jokes or video files that get downloaded or circulated on email can be just as, if not more, offensive to employees.
Finding a picture on the wall might be a straightforward exercise, but finding material stored on a hard disk, or an email displayed on the screen and then deleted, may not be as easy. Many sexual harassment cases against small and medium businesses involve computers.
Thankfully industrial tribunals, such as the Australian Industrial Relations Commission, will support employers who discipline or terminate employees who use company computers for storing, sending or displaying inappropriate material.
In one case a large employer terminated the employee, who was a team leader, for engaging in email correspondence with another team leader that was contrary to the company’s policy. The emails in question outlined in some detail a sexual fantasy involving a third employee of the company. The AIRC had little difficulty in dismissing the employee’s unfair dismissal claim.
However, in another case of an employee sacked for looking at pornography, the employee argued he was unfairly dismissed because it wasn’t him doing the downloading. He claimed another employee had got on to his computer to download pornographic material on his desktop computer. Because the company could not show that the environment was sufficiently secured against unauthorised use of the computer, the employee’s unfair dismissal claim succeeded.
Under federal and state anti sex discrimination and sexual harassment laws, business needs to have very clear policies and education processes in place to have any chance of avoiding becoming vicariously liable for the wayward acts of an employee.
For example, in the event that an employee is sent or views, even accidentally, sexually explicit images or commentary, the employer may well be liable for the conduct of the employee who sent the email or downloaded the unacceptable content and displayed it on a computer screen.
Employees can make a complaint to either state or federal equal opportunity bodies, such as the Federal Human Rights and Equal Opportunity Commission. These bodies typically try to resolve the matter through conciliation, however if they are unable to do so, the complainant usually has the option for the matter to be determined by a full hearing in a court or tribunal.
In a recent high profile case, the failure of the Department of Defence to prevent employees displaying screen savers that depicted explicit nudity resulted in a finding that the responsible employees and the department were liable for sexual harassment against a female employee. There were other more serious aspects of the case, including sexual assault, which resulted in substantial damages being awarded.
But in the context of this article, the important finding was that the sexual harassment constituted by the misuse of computers was part of the leadup to the more serious conduct. The court found that the department’s failure to properly implement an education program to prevent sexual harassment meant that it was vicariously liable for the acts of the employees.
The key is to have clear policies governing the use of computers, the internet and email facilities. In examining complaints made from the year 2002, the Human Rights and Equal Opportunities Commission found that only 10% of small business had a sexual harassment policy. Of these, only one in three had actually implemented the policy. These figures compare to 86% (88% implemented) of large businesses and 63% (50% implemented) of medium sized business.
Employers need to reinforce with employees that business computers are for business use. It’s essential to have a written policy that spells out what is and is not acceptable usage of computer facilities.
In the back room, employers should ensure that computer systems have effective firewall and content-blocking software. Password and login information needs to be strongly protected.
Another common measure, particularly with big employers, is to have a “pop-up” requiring employees to acknowledge the company’s computer policy at regular intervals.
While larger employers may have records of computer servers to rely on, smaller employers without that kind of infrastructure need to understand how they can recover even deleted material from a PC or laptop if it becomes necessary to investigate an employee’s behaviour.
The amount of information that can be extracted by people with the right software and the right expertise is mind boggling.
And it’s not just harassment or discrimination issues that should stir employers to attend to having a proper computer use policy. Downloads of music or software, for example, could be a breach of someone else’s copyright. No SME wants to have lawyers for major music or movie corporations removing their computers to use as evidence.
The lessons for employers:
- Have a policy that clearly sets out what is and is not acceptable use of company computer and electronic communication facilities.
- Put systems in place which give you the best chance of stopping, or at least uncovering inappropriate usage.
- As with any employment policy; update, educate and enforce.
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By Peter Vitale
Small and medium sized employers need to become more aware of how interviewing a candidate for employment could land them in hot water.
The range of anti-discrimination and industrial laws that operate in an employment situation are often just as applicable to the job interview process.
Sometimes employers let their guard down and ask questions that could imply that their decision to employ or not to employ someone has been influenced by considerations that constitute unlawful discrimination.
Here are nine inappropriate questions and why you should avoid them.
Are you married/engaged/planning a family/who looks after your kids (especially to women)?
Let’s face facts, a lot of employers find the prospect of dealing with employees going on maternity leave a bother they’d rather not have. For those employers who still think it’s important to their business to actively promote such a policy – think again.
You will probably be in breach of at least nine separate provisions of state and Federal law. The reported cases are replete with examples of employers who failed to offer a job, or a promotion, to women with responsibility for caring for children. Use of terms such as ‘darl’, ‘dear’ and ‘luv’ are also advised against.
How old are you?
It is a rare case where the age of a prospective employee will be relevant to whether or not they can do the job. And anyway, what about the skills shortage we hear so much about?
Recently we wrote about case involving applicants for positions as customer service officers with an Australian domestic airline. Age was found to be a defining factor in the rejection of their applications. That is unlawful age discrimination.
One of the few exceptions arose in a case involving an international pilot, a Mr Christie. Because of international aviation rules, pilots aged over 60 were not allowed to land at certain airports around the world. Mr Christie’s employer stopped him from flying all international routes after he turned 60, which he claimed was unlawful discrimination.
The matter ultimately went to the High Court which found that it was reasonable for the airline to make it a condition that international pilots be able to fly all scheduled routes.
So, Howard or Rudd?
Small talk in an interview breaks the ice, but this is not the topic to start with. Discriminating against potential job applicants on the ground of political belief is unlawful in all states and territories and under Federal law.
The main exception in all jurisdictions is where the employment is as an adviser to a politician or a minister of the crown. Involvement in union activity can sometimes, but not always, be a basis for discrimination on the basis of political beliefs. In Queensland an attempt to rely on this exception when terminating an employee of a government department was unsuccessful.
Do you go to mass on Sundays?
Discrimination on the basis of religion is a hot topic at present. As one Tasmanian case demonstrates, employers need to be prepared to allow employees to take religious holidays, even if they do not coincide with public holidays based on Christian holidays.
Many large employers also accommodate employees’ requirements for a quiet prayer room, even if not for that sole dedicated purpose.
Are you a cross dresser, then?
Many employers would be aware that the law in most state and Federal jurisdictions prohibits discrimination on the basis of sexual orientation. Many of these laws also contain specific reference to persons with transsexual or transgender characteristics.
In New South Wales, an employment agency was found to have discriminated against a woman, who 10 years earlier had been on the agency’s books as a man. They refused to recommend the woman for a position for which she was qualified on the basis that their client “wanted a woman – a vanilla woman”.
How will you make it up those stairs?
Interviewing disabled or injured employees sometimes presents particularly thorny issues for employers. Issues relating to those impairments should never be a consideration for employers unless it may have a legitimate impact on the employee’s capacity to perform the inherent requirements of the job.
In some cases, a pre-employment medical test may be justified. Furthermore, in some states, workers’ compensation legislation legitimises questions that have an impact on the employee’s ability to do the job. Untruthful answers may subsequently provide a basis for the employee’s workers’ compensation claim to be denied and in some cases may provide a basis for termination of employment.
Difficulties arise in circumstances where the employer may be required to provide some reasonable alteration or facilities to assist the employee perform his or her duties. The question of reasonableness is a vexed one. It may be reasonable for a local council to install a lift to allow disabled employees access to other parts of a building, but what about the case of a small private enterprise?
How long were you ‘inside’ for?
All states, except Victoria and South Australia, and the Federal jurisdiction have so-called “spent convictions” legislation. In general terms these laws mean that an employer may not discriminate against a prospective employee on the basis of “old” criminal convictions, usually at least 10 years prior. Exceptions may apply for serious offences and for offences involving dishonesty.
Is that a European name?
Many employers are aware that discrimination on the basis of race is unlawful. Race is almost without exception an irrelevant factor bearing on the employee’s capacity to do the job. Sometimes issues of race and religion can become blurred and there are some cases relating to employment in roles that require adherence to a specific religion which illustrate this difficulty.
What do you call that haircut?
So far Victoria is the only state to make discrimination on the basis of personal appearance unlawful. The cases demonstrate that personal appearance can cover a wide range of issues, including weight, hairstyle and tattoos. An employer is nevertheless entitled to establish a reasonable dress standard.
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Doing background checks or monitoring emails might seem like a reasonable way for employers to monitor prospective or existing staff, but it is easy to cross an expensive line into invasion of privacy.
By Peter Vitale
Employers are faced with some thorny issues if they want to read staff email, do background checks on prospective employees or anything else dealing with information about staff or prospective employees.
Tread carefully on privacy issues, because without realising it, employers can be legally liable unless they deal correctly with information provided as part of a resume, identified through background checks, or uncovered during routine email monitoring.
Privacy issues
In 2000, the Federal Government amended the Privacy Act to include a collection of 10 “national privacy principles” (NPPs) to give guidance in dealing with private information and the Privacy Commissioner broad powers to investigate and remedy interferences of privacy.
Small businesses with less than $3 million turnover are exempt from the regime unless they are related to a larger business, are a health service (and hold personal health information), perform contract services for the Commonwealth or trade in personal information.
Employee records
Employers can collect, use and store information directly related to an employment relationship without needing to comply with the NPPs, but as soon as the employer wants to use the records used for purposes beyond the employment relationship, the NPPs come into play.
For instance, employers shouldn’t use information about contractors for commercial purposes. Even though contractors are not employees, the lines are often blurred. And information provided by unsuccessful job applicants is covered by the privacy rules.
Monitoring email and internet usage
The legal position in regard to monitoring employee email and internet usage is both complex and unclear, and the issue is under review by most state and territory governments.
In New South Wales, covert email monitoring was prohibited by the Workplace Surveillance Act 2005. Employers in that state are not entitled to monitor or block emails or internet access unless prior notice has been given to employees.
There are exceptions, for example for material that could damage a computer system or that is offensive. But if employees are aware of the monitoring, there is no prohibition against it.
Care must be taken in how that information is stored and used. It could be argued that private emails carry the protections of the NPP regime, whereas work-related emails and internet logs may well constitute ‘employee records’ as discussed above. Any monitoring of emails or internet usage should be the subject of a clear employer policy.
Recruitment – police checks and criminal records
The Human Rights and Equal Opportunity Commission Act provides some protection against discrimination on the basis of criminal record. There is also ‘spent convictions’ legislation in most states and territories, except Victoria and South Australia.
In general terms, these laws mean that an employer may not discriminate against a prospective employee on the basis of ‘old’ criminal convictions, usually at least 10 years old. Exceptions may apply for serious offences and for offences involving dishonesty.
If a police check is to be used as part of a recruitment process, this should be stated in any advertisements for the position. Unless the nature of the position requires otherwise, it should also note that people with a criminal record will not be automatically rejected. Written consent of the applicant will be required for the police check application.
If information is sought informally regarding past convictions, care must be taken in eliciting the information to avoid discrimination claims. Only ask for specific convictions if they are relevant to the inherent requirements of job.
Do not ask questions that would require discussing spent convictions (usually this means various minor convictions over 10 years old, or five years in the case of juvenile offenders) unless specific exemptions to the spent convictions laws apply. In Victoria, police usually apply a policy of not disclosing offences of this nature.
Use of the information
Treat any information obtained confidentially, and use it only for necessary purposes. If a criminal record will be taken into account as part of a recruitment process, it may be wise to give the applicant a chance to explain the circumstances surrounding the conviction and the chance to provide character references, etc.
Recently the Human Rights and Equal Opportunity Commission found against the Victoria Police for refusing to interview a woman with drink driving convictions. The woman had applied for a position with the Emergency Services Telecommunications Authority. The commission found that Victoria Police had discriminated against her by applying the same ‘inherent requirements’ to the position as it would have for a sworn officer.
If a criminal conviction, which is not a ‘spent’ conviction, is disclosed for a current employee, the employer may have grounds for terminating employment on the basis that the employer can no longer have full faith and confidence in the employee. In a decision of the Queensland Industrial Relations Commission, the Brisbane City Council was found justified in terminating the employment of an accounts receivable officer, who it discovered had convictions for theft and forgery.
Information provided by referees
Occasionally a referee relied on by a prospective employee will not be as effusive as everyone might have hoped. In communicating this information back to employees, employers should be extremely careful not to expose themselves, or the referee, to a claim of defamation.
The lesson for employers:
- Make sure employees understand how you treat their private information and email and internet usage. Take care with information collected in a recruitment process as exemptions from privacy obligations do not apply.
- Not all criminal convictions exclude employees from working for you; you must always consider whether there is a genuine inherent requirement affected by the conviction.
- Exercise care in communicating referee feedback to a job applicant.
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Losing a skilled employee is always bad, but it is disastrous if they take your confidential client lists to a rival. Recent court decisions give employers some avenues to stop this happening.
By Lucinda Schmidt
It’s a blow most business owners face at some stage. One of your best employees is leaving, taking with them a brain stuffed full of confidential information and client details.
If there’s nothing spelt out in their employment contract, don’t despair. The common law offers some protection, including a duty for staff to act in good faith. That means they can’t spend their last few weeks stealing clients, enticing other staff members to join them or copying price lists.
The common law also prevents them from disclosing your company’s confidential information even after they’ve left. This covers trade secrets such as prototypes, computer programs, recipes, specifications, pricing margins and marketing strategies.
But here’s the bad news. The duty to act in good faith ends the minute they stop being employed by you. And the duty to keep confidential information secret does not cover what lawyers call “know-how” – the skill, knowledge and experience the employee has built up working for you.
This is where a few well-drafted clauses in the employment contract can give you a lot more protection. Known as “restraint of trade” clauses, they typically require an ex-employee not to entice customers or other staff to their new business, for a set period.
They usually re-state the common law obligation to keep confidential information secret, and often identify specific types of information. Senior staff might also have a clause that they cannot work for a competitor for a certain period.
Until recently, these clauses acted more as a deterrent rather than something to confidently sue on. Courts don’t like to stop people using their skills to earn a living, and have often sided with the employee to strike out restraint-of-trade clauses as being unreasonable.
But recent cases in several Australian states, where restraint clauses were enforced, show that the tide may be changing. The key thing is drafting. This is not an area to download a quick pro-forma from the internet and whack it into all your staff contracts.
In one recent case, the New South Wales Supreme Court upheld a restraint of trade clause preventing a former sales manager with John Fairfax Publications from disclosing confidential information to or taking a job with one of its competitors in the Sydney magazine market within three months of leaving his job.
The golden rule, according to intellectual property lawyer Paul Kirton, a principal at Macpherson+Kelley, is that the restraints must be reasonable. And they must be designed to protect the employer’s legitimate business interests.
Three things are key to showing the clause is reasonable: how long the restraint lasts (typically three, six or 12 months); the geographical region covered (such as a particular suburb or the east coast of Australia) and the activities it limits.
Even though you might be devastated that your top salesperson is leaving, a clause that they can’t work for a competitor anywhere in the world in any capacity for 10 years is not worth the paper it’s written on.
Far better to have a more limited, reasonable restraint, perhaps preventing them from working for a competitor in your town, or soliciting clients or staff, for six months.
The other important way to protect yourself is to act promptly on the day your employee resigns – whether or not they have a restraint of trade clause in their contract. If there has been any wrongdoing, you need to gather evidence fast.
Peter Vitale, principal of employment law specialists CCI Victoria Legal, says the first thing to do is give the employee a written reminder of their confidentiality obligations.
Next, do a search of their computer, checking emails and any unusual activity such as sending large volumes of files home or to be printed. If possible, check the call record on their mobile phone.
Vitale says that if you do have some concerns after carrying out these checks, it might be worth writing to their new employer advising them that you believe your company’s rights have been breached, and explaining how.
Another potential protection, says Kirton, is to make the staff member serve out their notice period. He says that often companies pay out senior staff and boot them out the door the day they resign, but it might be better to keep them on (but doing a job with no client contact or access to confidential information), to buy you a few extra weeks to prepare for their departure.
“The impact of a senior employee leaving is often greater for small businesses than for big companies,” Kirton says. “If a sales rep covers the whole of Victoria, or your R&D team is just a couple of people, the effect can be devastating. But it’s not hard to get some protection in place.”
Protection checklist
- Have labels or passwords on commercially sensitive information.
- Restrict access, for example secure storage in a designated area.
- Tell staff which information is confidential and that restrictions apply to its use or disclosure.
- Make sure all diaries and mobile phones are company property, returnable when staff leave.
- Make sure your employment contracts refer to confidential information and include an individually tailored restraint of trade clause.
- Get contractors to sign a confidentiality deed.
- Have a formal policy on use of confidential information, including its use at employees’ homes.
- Maintain contact with your customers.
Source: Paul Kirton, principal, Macpherson+Kelley Back to top
By Peter Vitale
A recent case has sent a clear message to employers: the connection with a workplace no longer ends when your employees walk out the door every night.
The recent award of nearly $500,000 in compensation against the Commonwealth of Australia and three of its employees highlights more than ever the need for employers to be vigilant about having and enforcing policies against sex discrimination and sexual harassment. Employers also need to ensure that all employees receive adequate training about their rights and responsibilities.
The Federal Magistrates’ Court awarded the compensation to Ms L, a former employee of the Department of Defence employed at a navy base in Cairns. The key events, as found by the Court, which led to the applicant making a claim, make for disturbing reading:
- Ms L’s workplace had a number of prominently displayed images of nudity and explicit sex acts placed by various employees around their workstations and on computer screens.
- Ms L had been subjected to unwelcome sexual advances by a fellow employee, Mr S. Further Mr S had written sexually suggestive notes to Ms L and exposed his genitalia to her while they were on a training course.
- Ms L was invited to a social dinner organised by workmates of Ms L and Mr S. The invitation to Ms L was carefully planned between Mr S and the other workmates. Mr L was highly intoxicated and was later raped by Mr S at his home.
- After the rape, Mr S continued to threaten Ms L with harm if she didn’t remain silent about the matter, and engaged in further acts and made further comments which were found to constitute sexual harassment.
- Ms L’s work performance deteriorated and her superiors, including Mr H and Mr D, were found to have engaged in bullying and humiliating behaviour, which included verbal abuse, formal counselling about her work performance and setting tasks to be completed within unlikely timeframes. The Court found this conduct to be victimisation, as Messrs H and D were both aware of the complaint made by Ms L against Mr S.
From an employers’ perspective, the critical findings in the case were that the Commonwealth as the employer of all of the relevant actors, had failed to take reasonable steps to prevent the conduct of Messrs S, H and D.
Under the Federal Sex Discrimination Act, employers are liable for the unlawful acts of employees if those acts were found to have been committed “in connection with” the offender’s employment. In this case, this included the sexual assault of Ms L which occurred following a social arrangement of which the employer had no prior knowledge and nor did it authorise or endorse.
The factual link