Is it legal for my company to install a monitoring service on my computer?

Is it legal for my company to install a monitoring service on my computer?

Technology in the Workplace

In the modern workplace, technology can significantly contribute to business productivity and efficiency, as well as increased flexibility with respect to employees’ work schedules.

Nevertheless, the presence of technology in the workplace has the potential to hinder productivity insofar as employees are accessing their private email and social media accounts during working hours.

 

Why would my company want to monitor my computer?

There are multiple reasons why your company may wish to install a monitoring service on your (and your colleagues’) company-supplied computers. It may be for the basic reason of determining if you are spending much time on personal email or social media accounts.

It could also be that they wish to protect themselves from a legal standpoint.  Employers may be liable to third parties (such as other companies) for an employee’s communication. This means that they could be held responsible if you send a slanderous email about a competitor. Likewise, employers can be ‘vicariously liable’ for any discrimination or harassment that occurs in the workplace, which means they could be held responsible if an employee sends a ‘harassing’ email to another employee.

 

What gives them the authority?

Only a few States in Australia have laws which relate to workplace surveillance. For example, in accordance with the Workplace Surveillance Act 2005 (NSW) s10, s12, an employer can monitor an employee’s computer usage only if there is a workplace policy providing for the surveillance, and the employees are notified that their computer activity is being monitored.

In Victoria, an employer cannot install an optical surveillance or listening device to listen or monitor the activities and conversations of employees in a workplace toilet, washroom, change room or lactation room. Likewise, it is illegal for any person to install or use an optical surveillance or listening device to record or monitor a private conversation without the consent of the parties. However, there is currently no law which specifically regulates the monitoring of employees’ computers. Generally, an employer has a right to install a monitoring service on company-supplied computers, as long as this is done in accordance with all relevant company policies.

 

What if my employer hasn’t followed the rules?

It may be the case that your employer has a company policy relating to the monitoring of employees’ computers, and you believe that they have not acted in accordance with this policy. For example, if the policy states that an employee will receive a written warning for using Facebook at work, but your boss decides to fire you for using Facebook at work, this could constitute a breach of the company policy. In such a scenario, you may want to meet with our lawyers who can assess your eligibility for an unfair dismissal claim.

On the other hand, it may be the case that your employer’s surveillance has gone beyond merely monitoring your computer activity at work. As mentioned above, if your employer installed a listening device to record you and your colleagues’ conversations in the office bathroom, this is against the law according to Surveillance Devices (Workplace Privacy) Act 2006 (Vic) s3(9B).

If you think your employer may be have stepped across the line with respect to workplace surveillance, you should seek legal advice in relation to breach of privacy.

 

I am an employer – what precautions should I take?

As stated above, if you are an employer in Victoria, you may be able to legally monitor company-supplied computers. Nevertheless, there are certain actions you can take to ensure your employees feel informed and respected. Creating a detailed company policy outlining the company’s practice of monitoring computer usage in the workplace can ensure that employees understand exactly what will be monitored. You may also wish to communicate to employees how the policy will be enforced, and the ramifications for employees who breach the policy to maximise compliance.

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