Businesses owners must make sure they carefully govern employees’ use of computer resources or risk liability for sexual harassment claims. By PETER VITALE of VECCI
By Peter Vitale
We all know that time is money for owners and managers of SMEs and tasks like implementing HR policies can swallow up a lot of time. But it’s worth considering the downside of not having proper employment policies in place, and computers provide a perfect example of how it can all go wrong.
Most managers of SMEs would be able to identify that pinning up pictures of pornography or nudity in the workplace might expose the business, and individuals concerned, to a claim of sexual harassment. But the explicit jokes or video files that get downloaded or circulated on email can be just as, if not more, offensive to employees.
Finding a picture on the wall might be a straightforward exercise, but finding material stored on a hard disk, or an email displayed on the screen and then deleted, may not be as easy. Many sexual harassment cases against small and medium businesses involve computers.
Thankfully industrial tribunals, such as the Australian Industrial Relations Commission, will support employers who discipline or terminate employees who use company computers for storing, sending or displaying inappropriate material.
In one case a large employer terminated the employee, who was a team leader, for engaging in email correspondence with another team leader that was contrary to the company’s policy. The emails in question outlined in some detail a sexual fantasy involving a third employee of the company. The AIRC had little difficulty in dismissing the employee’s unfair dismissal claim.
However, in another case of an employee sacked for looking at pornography, the employee argued he was unfairly dismissed because it wasn’t him doing the downloading. He claimed another employee had got on to his computer to download pornographic material on his desktop computer. Because the company could not show that the environment was sufficiently secured against unauthorised use of the computer, the employee’s unfair dismissal claim succeeded.
Under federal and state anti sex discrimination and sexual harassment laws, business needs to have very clear policies and education processes in place to have any chance of avoiding becoming vicariously liable for the wayward acts of an employee.
For example, in the event that an employee is sent or views, even accidentally, sexually explicit images or commentary, the employer may well be liable for the conduct of the employee who sent the email or downloaded the unacceptable content and displayed it on a computer screen.
Employees can make a complaint to either state or federal equal opportunity bodies, such as the Federal Human Rights and Equal Opportunity Commission. These bodies typically try to resolve the matter through conciliation, however if they are unable to do so, the complainant usually has the option for the matter to be determined by a full hearing in a court or tribunal.
In a recent high profile case, the failure of the Department of Defence to prevent employees displaying screen savers that depicted explicit nudity resulted in a finding that the responsible employees and the department were liable for sexual harassment against a female employee. There were other more serious aspects of the case, including sexual assault, which resulted in substantial damages being awarded.
But in the context of this article, the important finding was that the sexual harassment constituted by the misuse of computers was part of the leadup to the more serious conduct. The court found that the department’s failure to properly implement an education program to prevent sexual harassment meant that it was vicariously liable for the acts of the employees.
The key is to have clear policies governing the use of computers, the internet and email facilities. In examining complaints made from the year 2002, the Human Rights and Equal Opportunities Commission found that only 10% of small business had a sexual harassment policy. Of these, only one in three had actually implemented the policy. These figures compare to 86% (88% implemented) of large businesses and 63% (50% implemented) of medium sized business.
Employers need to reinforce with employees that business computers are for business use. It’s essential to have a written policy that spells out what is and is not acceptable usage of computer facilities.
In the back room, employers should ensure that computer systems have effective firewall and content-blocking software. Password and login information needs to be strongly protected.
Another common measure, particularly with big employers, is to have a “pop-up” requiring employees to acknowledge the company’s computer policy at regular intervals.
While larger employers may have records of computer servers to rely on, smaller employers without that kind of infrastructure need to understand how they can recover even deleted material from a PC or laptop if it becomes necessary to investigate an employee’s behaviour.
The amount of information that can be extracted by people with the right software and the right expertise is mind boggling.
And it’s not just harassment or discrimination issues that should stir employers to attend to having a proper computer use policy. Downloads of music or software, for example, could be a breach of someone else’s copyright. No SME wants to have lawyers for major music or movie corporations removing their computers to use as evidence.
The lessons for employers:
Peter Vitale is a solicitor, the General Manager of Workplace Relations Services at VECCI and a principal at CCI Victoria Legal.
See more articles by Peter Vitale here.
Smart Company is the leading online publication in Australia for free news, information and resources catering to Australia’s entrepreneurs, small and medium business owners and business managers.
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