Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn explain whether your work can track your computer.
Question: I have a work laptop which is my only computer so I also take it home and use it for personal use. My work did an inventory check of the work laptops and I got in trouble for spending time on non-work websites and they said I’m on probation. Are workplaces allowed to track you like this in your own home? – Dan, South Australia
Answer: Surveillance of employees is becoming more common in the workplace, particularly as more people are working from home.
Employers wanting to monitor their employees are using everything from CCTV cameras to GPS and data tracking on electronic devices.
Generally speaking, it is legal for your work to monitor and track your work tasks and your performance (which includes how you are using your laptop).
That said, your employer does not have an unrestricted right to conduct surveillance on your laptop and there are some things you should be aware of about your right to privacy.
Employment agreement
Firstly, you should review your employment contract or agreement to see if it contains any provisions related to computer usage and monitoring, especially when working remotely.
Some employment agreements grant employers the right to monitor work-related activities on company-provided equipment, even when used at home.
Employers often seek consent from employees for surveillance activities in the employment agreement or in a separate consent form.
It is unclear if you have even been given permission to use your work laptop for personal purposes. If you haven’t, your employer has every right to ask you to stop.
Company policies
Your employer may have specific policies in place regarding computer usage and monitoring.
These policies should outline the extent of monitoring and what is considered acceptable and unacceptable behaviour during work hours, whether in the office or at home.
Familiarise yourself with the policies to learn where you stand.
What is reasonable?
In the absence of anything in your employment agreement or in a company policy, employers are generally expected to exercise reasonable and proportionate surveillance activities and to communicate these with employees.
What is reasonable and proportionate would depend on the nature of the work you perform. For example, an employee would expect to be subjected to more surveillance working in a bank, compared to a cafe.
Justifiable reasons for using monitoring devices can include to:
• check the quality of a product or service
• detect theft or fraud
• ensure employees are safe at work
• ensure employees are complying with company policies – such as social media and privacy policies
• ensure employees are performing at the required level
Personal use
If you are using the work laptop for personal purposes during non-work hours, and you are entitled to do so, your employer’s conduct certainly raises concerns about whether they are acting lawfully in monitoring your personal activities.
Their conduct is even more questionable if they have not previously informed you that your personal use of the laptop would be monitored. They could be breaching the law.
Privacy laws
The national Privacy Act doesn’t specifically cover surveillance in the workplace.
The Surveillance Devices Act 2016 in South Australia regulates the use of all surveillance devices, including data surveillance devices capable of accessing, tracking, monitoring or recording the inputs and outputs of your computer.
It is an offence for a person to knowingly install or use a data surveillance device without the express or implied consent of the computer’s owner, or the person with lawful control or management of the computer.
The maximum penalty is $15,000 or up to three years’ imprisonment.
Next steps
If you continue to have concerns about your employer’s behaviour after looking at your employment contract and your employer’s policies, you should raise these concerns with your employer and confirm them in writing.
If you cannot reach a satisfactory outcome, you should seek legal advice, particularly if you consider your employment may be in jeopardy.
We note you are still on probation. It is unclear how long you have been employed, however you should be aware that if you are terminated within six months of commencing (or 12 months for a company of less than 15 employees), you cannot access an unfair dismissal claim.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au. Get more from Alison and Jillian on their Facebook page.