Personal Emails - Intellectual Property of Employer?

[Pippin]

I was retrenched and then placed on 'Gardening Leave' at very short notice. my work computer was not available to me on my final day, which I only found out was my final day near the end of it, so I was unable to pass on any info to immediate work colleagues. Now my employer has emailed me demanding I return all intellectual property such as emails from my private email address. Other documents should still be on my work computer and work email account. I think they are trying to get out of paying me while I am on gardening leave by saying I have not complied with contractual requirements under my employment contract.

Do I have to use my internet to forward emails from my private email address that may hold private comments?

 

[AnnaLJ]

Hi Pippin

I'm sorry to hear about your retrenchment.

The answer to your question will depend very much on the wording in your contract of employment. Do you have a copy of this?
Generally, an employment contract will have a clause that deals with intellectual property and will set out information around ownership and assignment of intellectual property. Commonly, employers will write clauses into employment contracts to the effect that any 'intellectual property' created by you in the 'course of your employment' with the employer will become the property of the employer. So the first step would be to find this clause and do the following:

- Look at what is included in their definition of 'intellectual property' (does it refer to email? and if so, does it only refer to email from a company web address? and only work created on a work computer?).
- Look at the wording around the situations in which this intellectual property is to be transferred (eg, does it state it relates to property created in 'course of employment' or something more specific? This is important as it will help guide whether emails in your personal time but related to work can be captured).

Looking at it from a strictly legal perspective, it could then be arguable that if you used your personal email account for work matters or to make contact with clients or colleagues that this forms part of the intellectual property that belongs to the company. Do you know why/how they are aware that you may have work emails on your private account?

However, from a practical perspective I would not be complying with their demands without more specific instructions from them as to the basis on which they are demanding them. You could write back something quite vague in an attempt to resolve it such as "all relevant work emails are contained on my work computer and in my work emails."

Separately, if you are based in Australia and are concerned about them trying to get out of their rights in terms of paying out your redundancy:

There are very strict procedures that your employer needs to follow in order to terminate an employee on the basis of a breach of contractual obligations. Given you have already been retrenched, I don't see how your employee could then do a complete flip and try to claim you were being terminated a result of breach of contract as this would mean the redundancy they had given you was not a genuine redundancy.

Can you please give more information as to why you think they might be trying to do this?

 

[Pippin]

I was retrenched with no prior warning or discussion for the reason that they can no longer afford to pay me. I was fine with that and planned to spend the next 5 weeks (contract says this us the notice time) sorting information, tidying and setting up future proposals do they could continue on. I was given my notice on the Wednesday so worked the rest of that week. When I returned to work the following week I had no computer to work from and was handed a letter requesting I hand over certain areas of my role to other people by the end of the day which I did with some foreboding. Then at the end of the day I was handed another letter stating I was now on 'garden leave' and was not to return to the work premises unless called upon to do so with 24 hours notice being given. So they were then paying me for not being there. After days latter I get an email requesting emails from my personal account and any other intellectual property I may have in my possession as per my contract. This is what makes me suspicious that they are trying to find/create a contractual breech so they don't have to pay me out.

 

[AnnaLJ]

Hi Pippin

Sorry, just to clarify, were you made 'redundant' or were you terminated? And have you spoken to Fair Work Australia at all?

It's important for you to ensure that your rights have been protected and that your employer followed the correct legal procedure in ending your employment. From what you've said above, your termination could be in the nature of a redundancy, as generally a termination of employment could only be effected after following a legal, performance management process (which, from the information you have given above doesn't seem to have occurred). Though I would recommend seeking advice from an employment lawyer or free advice from Fair Work Australia in this regard.

Has your employer agreed to give you a redundancy payout in addition to your 5 weeks gardening leave payment for your notice period?

I feel the nature of your termination could be an important issue for you to resolve to ensure your employer has upheld your rights.

Also, is there a clause in your contract that discusses intellectual property and the legal ownership of the work and documents you create while at work?