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

[Richard Fisher]

Hi,
Yesterday I was summarily dismissed by my employer - the only reason given is that they had received screenshots of a personal message I made with 3 other ex-workers (from the same business). As these messages state some unfriendly words about another staff member they state this is serious abuse to the staff member. Apparently they had gained access to this information via the Messenger App on a work ipad that had accidentally been left not-logged-out.
Now to me that seems like an obvious privacy breach - the person who access this info must have known it was another persons messages but have search through the messages, found a message (that includes me as a co-respondent) where I along with the other 3 have blown off some steam about one of my co-workers. They have screen shot them and given them to the manager.
The messages were not available to the co-worker so could never be considered abusive or bullying.
I have lodged an unfair dismissal claim and a conciliation has been scheduled in a couple of weeks however I'd appreciate your view/advice on whether the accessing, screen shots and use by my employer is a breach of my privacy.
Your help would be greatly appreciated

 

[Scruff]

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

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

 

[Rod]

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.

 

[Richard Fisher]

thanks very much for this info - we are now reasonably aware of what we need to do in the unfair dismissal hearing. However, in relation to the Crimes Act - how does a person take action? do we go to the local police or does it have to be a solicitor

 

[Scruff]

Just to add to this...

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.

...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.