It seemed a little case, but it has big ramifications. It began at Western Hospital, where an orderly/security officer was noticed to be frequently absent from his post. Covert surveillance revealed why: he was spending more than a quarter of his work time in an audio-visual room, watching porn on the Internet.
He was sacked and appealed against the dismissal. The ruling: he didn’t have a leg to stand on. “I consider the use of pornographic material in the workplace to be totally and absolutely inappropriate,” Industrial Relations Commissioner Foggo said in his June ruling on the case.
Commissioner Foggo found that watching porn on the Net at work was, in itself, an offence serious enough to justify instant dismissal, before even considering the related questions of neglect of duties and lost productivity.
Immediate termination is a punishment traditionally associated with the more dramatic breaches of workplace etiquette, such as punching out the boss or arriving at the office reeling drunk. Now, it seems, failure to keep oneself nice on the Net has joined the list of capital offences.
This will no doubt be concentrating the minds of the 100 or so employees of the Australian Bureau of Statistics who are being investigated for allegedly sending or receiving pornographic pictures, downloaded from the Internet, through internal office e-mail.
It is believed that their illicit activities were discovered during a routine security sweep of the staff’s personal e-mail files. Covert surveillance of the hospital orderly, however, only began after suspicions of wrong-doing. But both cases raise questions, not only about staff using office facilities to embrace the world of cybersex, but about employers using the hi-tech tactics of Big Brother.
In the Western Hospital case, Commissioner Foggo acknowledged some disquiet over the monitoring issue: “I have some problem with the surveillance being installed and employees not being aware of it. However … I concur with the view of the management of the hospital … that the workload issue, the integrity of the health care and the security services and, as it turned out, the use of pornographic material, even though it was not known at that stage, do, in the end, justify the use of surveillance.”
According to a recent survey by PricewaterhouseCoopers, more than half of Australia’s biggest companies carry out video surveillance of their employees and the general public. And 15 per cent of those who do so do not inform their staff of it. Those who do tell their staff usually do not reveal details, such as where and when the monitoring takes place. Many employers also monitor staff phone calls, e-mail and Internet use.
It is much harder to estimate the prevalence of furtive use of office computer facilities to access pornography.
Individual companies approached for comment refused to be part of this story. Telstra declined to confirm or deny a report that an employee was sacked several months ago for offences similar to those alleged at the ABS: “We cannot talk about individual employees,” says spokeswoman Liz McGrath.
But Telstra has adopted a hard-line policy on Internet use that is typical of the protocols many anxious companies now impose on their staff. McGrath says: “When staff sign up to use the Net, their general manager is required to sign a document saying that they understand that this is to be used for business purposes only and that any employee found to be downloading inappropriate material
would face internal disciplinary action or, where warranted, would be handed over to police.
“Staff are made very, very aware that there are controls in place to monitor their use of the Internet.”
So, what rights do staff have to privacy in their cyber communications?
None, apparently, says associate professor Julian Teichner, executive directior of the National Key Centre in Industrial Relations at Monash University.
“The normal rights we have, or assume we have, to privacy do not necessarily apply at work,” he says. “At work, you are really surrendering those rights. The (employer-staff) relationship, in the abstract, is one which is very restrictive of the individual … I think employers can introduce any surveillance they like.”
Teichner recalls an unfair dismissal case several years ago in which a union argued that one of its members was justified in having obscured the view of a surveillance camera because the camera had been installed without the union being informed: “The commission actually ignored the argument about whether the union should have been consulted.”
While staff surveilance may seem heavy-handed to some, most employers believe sexual harassment laws, which make an employer responsible for creating a working environment in which all are comfortable, force management to proactively screen for trouble of a sexual nature.
David Gregory, industrial relations manager for the Victorian Employers Chamber of Commerce and Industry, says viewing porn on the Net is no different to reading a pornographic magazine at your desk: “If someone happened to walk in and take that behavior the wrong way, it could constitute a breach of the sexual harassment laws.”
Last, but not least, is the question of the damage that could be done to a company’s good name if its staff become publicly associated with the transmission of prurient material. Recently, a long and bawdy limerick about the imagined sexual proclivities of political figures arrived unsolicited, and presumably accidentally, at an e-mail address at this newspaper. It came via a prestigious law firm.
That’s one of the terrible dangers of e-mail, says Professor Teichner: “Press the wrong button and you could send it to 1000 people.”
First published in The Age.