NSW Summarily dismissed for information my work received from a private message

Richard Fisher said:

I'd appreciate your view/advice on whether the accessing, screen shots and use by my employer is a breach of my privacy.

Click to expand...

In my opinion, it's not. If the device belongs to your employer, they have a right to inspect it at any time.

Do you have a lawyer helping you?

Starting point is to review your employment contract and company policies to see what they say about use of company property and surveillance.

NSW does have surveillance laws an employer needs to follow. I am not in NSW and can't comment on this aspect.

Depending on the size of your employer they may have had to comply with APP4.

Additionally CRIMES ACT 1900 NSW - SECT 308H says unauthorised access is a crime in NSW. There are defences to this crime but I can't tell if any apply. Certainly worth raising this point if only an attempt to put the other on the defence. A good lawyer for the employer will ignore this point from an employment dismissal perspective.

It is certainly arguable your behaviour may have only warranted a warning.

Just to add to this...

Rod said:

Additionally CRIMES ACT 1900 NSW - SECT 308H says unauthorised access is a crime in NSW. There are defences to this crime but I can't tell if any apply. Certainly worth raising this point if only an attempt to put the other on the defence. A good lawyer for the employer will ignore this point from an employment dismissal perspective.

Click to expand...

...one reason for this being that it wasn't the employer who accessed the device.

To correct my previous post, it appears to me that the device was actually accessed by a co-worker - not a supervisor, manager or employer. If I am correct, then it means that any action under the Crimes Act would be against the co-worker and that would likely result in the dismissal standing. The employer has a right to maintain a co-operative and efficient workplace and if you have a co-worker charged with an offence after an incident like this (comments about another co-worker), then it sends a clear message that you're not getting along with the other employees - and that severely damages any unfair dismissal case. I therefore don't see any benefit at all to involving the Police - in fact, I think it would do more harm than good.

In regard to surveillance laws, from memory, the NSW Workplace Surveillance Act only relates to video (CCTV) and covert surveillance of employees, so I don't think anything in that Act or the Surveillance Devices Act would apply in this particular situation.

I think the focus here needs to be on privacy and whether or not the other employee had any right to even look at the device, let alone go through any content it contained.

Whether or not dismissal is excessive in the circumstances will largely depend on what the actual comments were and given that it wouldn't be advisable or appropriate to post those comments here, it's difficult for any of us to comment on that issue with any kind of conviction - that particular matter would be best discussed in private with a lawyer.