WHILE downloading pornography at work continues to grab headlines, there are far wider ramifications that many HR practitioners are struggling to stay abreast of. Human resources departments are failing to draft enforceable company email and internet policies, a leading Sydney lawyer has told Human Resources.
WHILE downloading pornography at work continues to grab headlines, there are far wider ramifications that many HR practitioners are struggling to stay abreast of. HR departments are failing to draft enforceable company email and internet policies, a leading Sydney lawyer has told Human Resources.
Leif Gammertsfelder, senior associate with Deacons, practising in the digital industries and technology areas of law, said that an organisation’s email use policy should stipulate what is unlawful or illegal communication for the purposes of an employee’s contract.
“We’ve seen a lot of cases through the courts where that’s a point of weakness for many organisations. You have to ensure that the terms are reasonably precise, that they’re enforceable and that you take care in keeping them up-to-date in a legally effective way and that they’re communicated in an effective way to the organisation,” he said.
The first major example of policy inadequacy in an Australian context was the Ansett case. The Federal Court found that Ansett Australia had acted unlawfully, breaching the Workplace Relations Act 1996, when it dismissed an Australian Services Union (ASU) delegate for distributing a union newsletter on the company email system.
“The policy was not clear enough to be enforceable. Whilst management thought it was clear enough, the courts thought it was unclear for the purpose for which management had sought to rely on it,” said Gammertsfelder.
That case exposed a common weak link found in many organisations - amendments made to policies being poorly promulgated.
“Granted they were made, but whether or not the employee had seen them was debatable and the HR team in that case admitted to not having a very good grasp of the actual policies. That is a recurring weakness in the HR fabric throughout many organisations.
“Whilst a fair bit of momentum is building in this area, not enough intention goes into the actual detail and the ramifications. So a lot of HR people develop these policies and some good thought has gone into them, but some organisations make outrageous statements in them that will clearly never be enforceable, while others are too weak and too uncertain and too unclear to be enforceable,” he said.
Gammertsfelder admits that getting the right mix is a very difficult thing, but it should involves HR, legal, IT and management in determining what the policy’s objectives are. The aim should be to try and bring enough pressure to bear on unlawful communications, but still leave enough flexibility to take advantage of email and all the features that it provides.
“Authentication and authorisation are big issues that we have to come to deal with. It’s not just about trying to crack down on personal emails or unnecessarily impact on the lifestyle or needs or the employee, but it’s certainly about looking after the legal requirements of the corporation,” Gammertsfelder said.
External email communication is often looked upon in a more relaxed manner, however, he said that this was also a mistake. Statements made in emails can constitute misrepresentations under the Trade Practices Act – statements that could be construed as negligent misrepresentations, all in the name of the company.
“Every email is branded with an employee’s first name and last name at company.com. That can lead to all sorts of legal issues that companies are just getting around to attempting to manage.
“Companies can also suffer brand damage, as emails can be forwarded quite easily. It’s a very damaging medium potentially, so training programs and enhancements and revisions to email polices are going to be very important in the years to come,” he said.
