By Joseph Kelly, Kelly Workplace Lawyers
Can your employer monitor your email and internet use?
Employers are generally permitted to monitor emails and internet use if employees have been notified of such monitoring through a clear workplace policy.
This policy should outline the types of monitoring conducted, the purposes for which information is collected, and how it will be used. Implied consent may be inferred if employees are aware of and accept the policy. For example, if a company handbook states that all work emails and internet activity may be monitored, employees who continue to use these systems are generally considered to have accepted this monitoring.
It is considered best practice for employers to provide clear and accessible policies regarding email and internet monitoring. These policies should be communicated regularly, included in induction materials for new staff, and updated as workplace technology changes. Employers should also clearly state whether personal use of email or the internet is permitted and to what extent it may be monitored. Failure to notify employees or to maintain a clear policy may lead to legal challenges, particularly if the monitoring results in disciplinary action or dismissal.
Can an employer monitor my phone calls?
Most Australian states have laws preventing employers from monitoring employee telephone calls unless consent is provided, either in an employment contract or through a workplace policy. Telephone recordings obtained unlawfully cannot generally be used as evidence in disciplinary proceedings.
However, in McGlashan v MSS Security Pty Ltd [2022] FWC 3304, the Fair Work Commission held that telephone recordings between colleagues were admissible. The case involved the dismissal of an employee following recordings described as “extremely offensive in nature.” The Commission considered that the employee’s signed employment contract and workplace policy explicitly extended workplace surveillance to audio recordings of telephones, making the monitoring lawful.
Employers should also ensure that monitoring is proportionate and not overly intrusive. For example, recording personal conversations or private communications outside of work hours is generally unlawful and may expose the employer to claims of privacy breach.
Key Takeaways
Employers can monitor emails, internet, and phone calls provided they:
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Comply with relevant legislation,
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Notify employees, and
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Implement clear workplace policies.
Employees should be aware of monitoring and its scope to ensure compliance with legal and ethical standards. Clear communication, regular updates, and proportionate monitoring are essential to avoid disputes or legal risk.
If workplace surveillance is an issue for you, please go to our booking tab to make an appointment with one of our workplace law specialists.
If workplace surveillance is an issue for you, please go to our booking tab to make an appointment with one of our workplace law specialists.
