SA About to be fired for private Facebook conversations

Discussion in 'Employment Law Forum' started by Ashleigh Johnson, 29 March 2018.

  1. Ashleigh Johnson

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    I was off sick and my state manager sent a text message saying it was urgent and tried calling me multiple times. I also had messages from a colleague saying she believes they are going to fire her and requested a meeting in 48hrs. I called my colleague and she stated that she received a letter of notification and was told she would be terminated dependant on her response. We have had continued issues with our state manager who is in a relationship with a top staff member in upper-management in our company, is located interstate and never available despite urgent issues. Our state had a petition and mass walk out of contracted employees due to this recently. We were the two middle management staff who were backing our staff and contractors when they went ahead with the petition.

    When I spoke with my manager she informed me of a formal meeting (refused to give any further details) was to be held in 48 hrs at another company location. I knew it sounded suspicious I requested what the nature of this meeting was with no response after multiple requests during this call she finally said a complaint was put in, from some time ago regarding conversations on Facebook. I have contacted all old and current staff to clarify if they had lodged a complaint of any form about myself and/or the other colleague. All have responded no.

    After the jolting call, I was emailed a letter of formal meeting notification. This is the first and only disciplinary or performance meeting/action I have ever received in this company. The letter states the reason for the meeting being conversations via Facebook - derogatory language, discrimination and breach of company social media policy.

    That same evening I went to check my conversations via Facebook, any content posted on my account and said by either of us in our group chat. All group chat conversations were fairly tame on our behalf if anything the nature of conversations from all staff in group chat was equal and would warrant other staff to have disciplinary action if so. I have had multiple conversations with colleagues, friends and staff privately via Facebook, using the app on my personal phone. I would suspect this claim is about private and confidential conversations had by myself and my colleague via Facebook.

    While checking historical conversations I also checked my security log and discovered my facebook account was being accessed by an unknown PC and the last time had been only 45 mins beforehand by a company (my employers) registered PC using chrome (Chrome saves passwords) - out of business hours in the evening - The PC is clearly registered by the company when tracing the IP address. I have saved evidence of it all and was wondering what laws they have broken accessing my account, using chrome to bypass password/login and whether using private conversations to dismiss staff without prior warnings is lawful. Especially considering the background of the situation.

    Any of the laws and acts would be a great help. Thank you!
     
  2. Rod

    Rod Lawyer
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    Some info here: Privacy rights | Attorney General's Department | South Australia

    Also look at the CRIMINAL LAW CONSOLIDATION ACT 1935, PART 4A--Computer offences.

    While not likely applicable, I'd also be suggesting identity theft and cybercrime may be an issue for the person accessing your account.

    There's the Telecommunications (Interception and Access) Act 1979 (Cth) section 7 that may be applicable. Comes with civil penalties via s107A if found proven. Been a long time since I looked into this Act so not 100% sure if illegal access of Facebook fits the required definitions. Something you can investigate though.

    I don't think the PRIVACY ACT 1988 (Cth) covers illegal access. It is more about information organisations misuse.

    Other than the crimes act above I don't know if there are other special laws in SA directly addressing your situation.

    I'd imagine for any valid workplace complaint against you they'd have to have information detailing who accessed your account to retrieve the Facebook messages, leaving them open to criminal prosecution.

    The manager appears to be attempting to 'stitch you up'.

    There are multiple grounds of action against your employer if they sack you, including relying on private, not public, communications.

    Hope some of this helps.
     
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  3. Rod

    Rod Lawyer
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    A little more research uncovered the SURVEILLANCE DEVICES ACT 2016 (SA)

    SECT 3 has the definition, s8 is about use, and s12 has penalties. Up to 3yrs prison, and $75,000 fine for corporate entity.

    Being a new Act I was not able to find any cases giving judicial guidance on how various definitions are used by the courts. Yours might be the first :( if the employer is silly enough to sack you.
     
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  4. Adam1user

    Adam1user Well-Known Member

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    I like to add one point: if you used the company computer (laptop/desktop) and the company network to access any website even for personal use (anytime of the day either work hours or after), it is not considered personal and the company has the right to monitor and see the contents, this is what I understood. I need also to mention that if you used your personal mobile/tablet/laptop using the company's wifi network, it would fall under the same point.
    the only way that they have breached any law or legislation is if they hacked your Facebook account/ email account and you never ever used the company's systems or networks.

    If I am wrong, please someone who knows about this provides more info.
     
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  5. Rod

    Rod Lawyer
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    The company has no rights to access private information hosted by 3rd parties. There may be company policies saying not to use company computers but if you do, but that doesn't give the company the rights to hack into your accounts, trawl through your personal information and sack you based on the information they found.

    The company may, and I say may because it is do no means certain, sack an employee for misuse of company equipment, but it does not give them the rights you are suggesting. The two actions are separate and what the employer has done is likely illegal and actionable, especially if they sack the OP based on the information rather than using company equipment. Hopefully the OP has not used their real name here but if so, they should change it asap.

    No, for the reason I have mentioned above. Employers do have the right to protect usage of their resources. Employers do not have the right to trawl through employees' private lives.

    The best solution really is for both sides to back down, say none if this matters, let's get back to business. If the employer sacks the employee based on the limited information we have been given, which is one side of the story, then the employer could be in a world of hurt that may cost them more than they expect. If I was a lawyer in SA I'd be all over this case.

    BTW, if the OP is called into a meeting it should be with a support person, and record the meeting. Hmm, not sure in SA if recording requires consent - I'll check and post back.
     
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  6. Rod

    Rod Lawyer
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    Read s4(2)(a)(ii) SURVEILLANCE DEVICES ACT (SA) 2016.

    But keep in mind if you do it covertly then other implications can flow, such as fail to be re-instated due to a breakdown in trust.

    Doing it openly with consent is much better.

    If the employer refuses, record their refusal in notes. And take heaps of notes. Pause the meeting if you have to write down verbatim the damming parts of their conversation.
     
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    #6 Rod, 29 March 2018
    Last edited: 29 March 2018
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