A failed attempt by a senior Federal public servant to overturn his termination for accessing porn on an employer-provided laptop while at home has highlighted the importance of setting clear policies for the use of company-owned hardware, a legal expert says.
According to the judgement handed down by the Federal Court yesterday, John Frank Lewis Griffith, a senior public servant with the Commonwealth Department of Resources, Energy and Tourism, was found to have accessed pornographic images on a Department-owned laptop on eight days between Saturday May 30, 2009 and Sunday June 21, 2009.
He did so “in the comfort of his own home and using his own internet service provider” and none of the images were in any way illegal.
Griffith, who was ironically a member of the Department’s IT sub committee, was caught out by a piece of monitoring software installed on Department computers that took a snapshot of the users’ activities every 30 seconds.
The software scanned internet search phrases and was triggered by the phrase “knockers”, which Griffith had used as a search term.
Griffith was subsequently terminated, in part for beaching the Department’s IT usage policy, which he had signed, and in part for concocting what Federal Court judge Justice Nye Perram described as “an elaborate, but ultimately unbelievable, explanation for his actions based around notions of research and inquiry”.
Griffith launched legal action against the Commonwealth and the senior public servant who had conducted the inquiry into the incident, arguing that the Commonwealth had invaded his privacy by monitoring his computer usage while he was at home on his personal internet connection.
However, Justice Perram dismissed Griffith’s application and awarded costs against him, finding that the Department’s policy specifically directing its employees not to look at pornography was lawful and reasonable.
“The laptop was Commonwealth property and the Department, as part of its right of ownership over that asset, was entitled to proscribe the uses to which it could be put. It is difficult to accept that the Commonwealth was disabled from telling its own public servants what they could and could not do with its own property.”
But the judge also had a measure of sympathy for Griffith, saying the decision to terminate his employment “may well be harsh – there will be those who think it inhumane”.
Greg Robertson, general counsel at Harmers Workplace Lawyers, says the case highlights the importance for employers to put clear and well-articulated policy in place around the use of company-owned computer equipment – particularly in an era where companies are issuing staff with laptops, smartphones and other mobile devices.
“The Department had a pretty explicit IT policy and the employee had signed it,” Robertson says.
However, he says the case may also raise some questions about the use of monitoring software like that used by the Department, which took a snapshot of a computer every 30 seconds.
Perram said that while monitoring for issues such as the downloading of pornography was clear cut, the use of other information collected by monitoring software could involve privacy breaches.
Perram wrote that monitoring software that “gratuitously collects personal banking information or credit card details during periods of personal use… may very well involve a breach of privacy”.
Robertson says this highlights the grey areas that employers and the courts would have to explore further.
His key advice is to have a policy in place, regularly remind employees of that policy and tread carefully when examining IT systems and hardware used by staff.
“Where I think employers will get into some difficulty is where they just go snooping around, particularly where there are other performance issues.”
James was the editor and publisher of SmartCompany and LeadingCompany for five years. He is now the Australian Financial Review‘s companies & markets editor, and a former BRW editor.
