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The boundaries between public life and private life, specifically in relation to the workplace and the home, have become porous.

  • Category:
    Business
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    4
  • Words:
    2891

Introduction

The right to confidentiality is one of the most fundamental, significant and cherished human rights. It embodies the respect that civilised societies hold for the worth of personal integrity, dignity and sense of selfhood. However, in the modern world the right to confidentiality is subject to invasion in the employment sector. Notably, employers have always assessed and supervised the work of employees besides assessing their employees’ potential, reliability and performance. The advancement in modern technology that has paved way to new sophisticated technology is available to employers. This technology arms employers with highly effective and advanced techniques of evaluation and supervision. An increased number of employers now have at their hand the instruments required to engage in testing, monitoring and surveillance of employees. Apparatus are in place that provides the employers with the means to pry into the personal affairs and lives of employees. As a result, the boundaries between an employee’s pubic life and private life have become porous.

Modern Technology in the Workplace

Modern technology engenders more foolproof, frequent and facile supervision, but also makes possible secret supervision. Naturally, employees raise concern over invasion of their privacy by their employers. The interests of employees with respect to privacy often clashes with their employer’s interests in managing and controlling their workforce. As sophistication of technology develops, the danger to the privacy of employees heightens. As a result, employees are turning to the legal system to seek redress of perceived wrongs perpetrated by their employers. For instance, in Saad V Chubb Security Pty Ltd (2012), the employees sued her employer for invasion of privacy under the Privacy Act 1988. In this case, the employer had installed CCTV cameras to monitor employees’ activities. The employee’s images were later posted on the Facebook site thereby infringing on the privacy of the employee. Although an employee of the firm might have posted the CCTV images, the employer had the right to protect the privacy of his employee. An employer basically has a duty to protect information that is private to an employee under the Fair Work ACT 2009 and Privacy Act of 1988. However, the Privacy Act of 1988 exempt employee records because prospective employees do not have an employment relationship with the potential employer1. Despite the exemption of employees’ records before employment, an employer has a duty of utilising employees’ records in a manner that directly linked to the employment relationship.

The internet has made the boundaries between private life and public life porous because people are increasingly using the internet and social media platforms to find data about someone. It is broadly accepted that the last twenty years of technological change has profound implications on the way work is carried out in scores of Austrian workplaces. The broad use of computers and the flexibility offered by the internet implies that office work can be performed anywhere away from the office. The internet has revolutionised access to, dissemination and exchange of huge amounts of data for social and work purpose. The internet facilitates efficient and speedy communication between staff and management and can give employees and employers vast amount of information. According to Davies,2 an author, the advancements in technology has blurred the boundaries between employees’ working lives and private lives (127). The author mentions a case of a teenager girl who was sacked from her employment for describing it as boring in social networking sites. The case of Hays Specialists Recruitment (Holdings) Ltd and Another v. Ions and another is a good example that demonstrates how the current technological advancements leads to potential issues for employees and employers. Damien O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311 (August 11, 2011) also how off-duty activities of employees can lead to dismissal or firing of employees. The three cases mentioned above demonstrate the importance the employers and employees duties.

Employees’ And Employers’ Duties

Employment relationships are developed on trust and the rights of both parties. Employers and employees hold specific rights in terms of labour legislation and common law. Balancing of employers and employees’ rights is pivotal and essential to a successful and fair employment relationship. Employers’ rights are the obligations of employees while employers are obligated to uphold employees’ rights. According Weiss & Schmidt (2008), the employee’s main duty is to perform the work, which the employer and employee have agreed upon in the employment contract (90)3. An employee is obliged to perform his duties as agreed and he is not supposed to provide substitute. The employee is also required to work under the command, control and authority of the employer. It is the right or duty of employer to specify the contractual obligation of the employee by giving employees orders as granted in the employment law. The employer has the right to delegate his power to the supervising personnel within a firm and it is the duty of employee to obey the orders from their employers.

Besides duties to work, the employee has other duties referred to as ancillary duties. The ancillary duties include upholding the privacy and confidentiality of their employers. Employees are not allowed to disclose secrets about their employers; damage their employer’s property and act as competitor by taking additional jobs. Besides the duties of loyalty, employees are required to respect duties of conduct which are not derived from the contractual obligation, but which are developed for the order of their workplace. Such duties include the duty not to smoke, the duty to respect certain procedures and the duty not to take alcohol. However, such duties can only be enforced in so far as they do not impede the employer’s right to privacy in an unjustified way. The interests of employers in ancillary duties and employee’s rights to privacy must always be balanced. However, in situations where there is a works council, employers require the works council consent to enforce some ancillary duties. According to Stewart. Herridge and Parker (2009), employees have the duty of fidelity. They have a duty not to denigrate their employers’ services or undermine their employers business (313)4. Employees also are obliged to communicate valuable information to the employer and protect the confidential information of the employer. Berman and associates affirms that the employee’s duties under the contract of employment include the duty to be ready and willing to work, the duty to care and skill and the duty to obey reasonable and lawful orders (143)5.

With respect to duties of the employer, the employer is obliged to pay remuneration for work done. Stewart, Herridge and Parker assert that an employer has the duty to pay wages (313)6. According to the three authors, it is the duty of employers to pay wages and reimburse employees’ for expenses incurred during their employment. More so, employers are obliged to provide safe working conditions. The common law enforces a duty on employers to take realistic care to avoid injury and illness in the workplace.

The Status of Employer’s Duties and Insufficient Protection of Employees

Equally, employers are required to uphold the privacy of their employees. There are element of duties that apply to both employees and employers. These elements include the duty of fidelity, unauthorised use or disclosure of information, unauthorised comments on the employer’s business, use of employee’s spare time, secret commissions and bribes and duty to account for employer’s property. With regard to employee’s privacy, employers are allowed to divulge confidential information starting with applicants and extending to active duty personnel. As a result, employees hold minimal privacy protection because the courts have granted employers extensive power to utilise this type of information to uphold efficient agency operation and worker’s duty fitnesss. Apparently, employers commonly perform background investigations on applications and monitor confidential information linked to employees’ official duties given the danger of corruption and high public trust. For instance, an employee was justly dismissed for falsifying timesheets where the employer had obtained proof via covert surveillance of the employee’s home (Davies 403)7. In this case, the employer was found not guilty because his actions were justified as it was investigating a criminal activity. However, the law requires that employers protect the confidentiality of employee private information besides taking measures to ensure that the private information is not disseminated or mishandled unless needed by the law.

The private and public lives of employees have become porous. Apparently, social media platforms have become a new version of people’s private life. These platforms can affect an employee’s work particularly when employees provide content-related to their employment. The case of a teenager mention herein who was dismissed for terming her employment as boring is a true testimony how social media platforms affect one’s employment. In the contemporary world, it is a commonplace for recruiters and employers to review a candidates social media accounts prior to hiring them. The situation becomes intricate when current employers view an employee’s social networking account. Notably, employers just like other people have the right to view any data in public domain. For instance, in Damien O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311 (August 11, 2011), The Good Guys company dismissed its employee for posting deprecating comments relating to the company’s payroll unit on the social media. The Fair Work Australia maintained that employee warranted dismissal for breaching his employer’s rights to privacy. Mr O’Keefe dismissal is evidence that employers are not adequately protected. Although the employee had ensured maximum privacy settings in his Facebook account, some of his Facebook friends happened to be his colleagues at The Good Guys Company (Zillman 1)8. Despite the fact that O’Keefe posted his pay frustrations outside his workplace and working hours, the judges ruled in favour of the company largely because the firm had laid policies and procedures on how employees should conduct themselves.

Privacy in the workplace is becoming a great issue for employers. Although the employers are required to uphold the privacy of their employees, employees are not sufficiently protected. Evidently, employers are collecting more information concerning employees. Although employees are becoming more protective and aware of privacy issues at work, they are not sufficiently protected. Baker & Mykenzie (1086) affirms that there is no constitutional law, right to privacy in Australia9. However, in 2003, an Australian court acknowledged a right of action for invasion of Privacy. In a case, Grosse v. Purvis (2003) QDC 151, the District Court of Queensland cited the authority of the High Court to provide a foundation upon which to acknowledge a right of action to privacy invasion. Significant damages were awarded to the plaintiff for emotional harm and distress. In the contemporary world, employers’ duties to employee are litigious. An employer may be entitled to discipline an employee for off-duty misbehaviour. A misconduct of an employee while off-duty can still instigate publicity that damages the image of a firm.

The relationship between employees and employers should be of reciprocal nature because it entails upholding of employees’ rights by employers and employees upholding the rights of their employers. An employee is obliged to respect his/her employers while the employer is obliged to honour his duties to the employee. Although this is the case, employers are able to monitor their employees’ off-duty conduct. Apparently, in most nations, there is no single law that protect employees’ rights while they are out of their workplace. Depending on one’s activities, an employer can dismiss an employee for what she /he does when off-duty. This is well demonstrated in O’Keefe case where the Good Guys Company dismissed him for his off-duty activities. According to Beatty and Samuelson, an employee’s off-duty conduct can affect his/her employer (327)10. For instance, a smoker may demonstrate higher healthcare issues and reduced productivity. In some nations such as the United States, some states have passed laws that protect the right of workers to engage in any lawful activity when off-duty. In absence of such statute in most nations, employers do have the right to fire an employee for off-duty conduct. Although firing employee for off-duty conduct is an invasion of employee’s privacy, employers justify their conduct by demonstrating the negative effects of their employees off-duty conduct to the employer. In France, off-duty conducts that cause harm to the employer or that affects the performance of an employee can be a basis for dismissal or discipline. In Australia, the Court decides whether an off-duty conducts hold an impact on a worker’s role. For instance, in one case, a worker in small community was dismissed for having an affair with the employer’s wife (Blanpain 177)11. The court verified his dismissed for off-duty conduct, which was deemed as negatively affecting the employer.

Employees perceive their standards of privacy in their private lives to be much higher that while at work. The apparent difference amid employee’s working and private lives is the contractual relationships their make with an employer and the degree to which the terms and conditions of their employments affect their privacy rights. According to Reobuck, an author, the employee-employer relationship does lower the levels of privacy that employees expect in their private lives (21)12. However, this erosion does not permit employers to disrespect employee’s privacy because the employers also have duties. The modern technology makes it possible for employers to monitor their worker’s activities through electronic emails, voicemail and social networking sites. Such monitoring is basically unregulated. Unless a company’s policies state otherwise, employers may access an employee workplace communication. It becomes to understand when to place the line amid employees’ rights and corporate integrity.

Conclusion

Drawing from the Good Guys Company’s case and other cases, it is evident that the law concerning a worker’s privacy expectation has not caught up with the modern technology. The already existing law cannot in itself analyse claims that are linked on electronic privacy. The fact that scores of judges have declined to anticipate where the law is headed to given the swift changes in technology is a clear indication that employees are not adequately protected in terms of privacy. Therefore, claims relating to privacy are assessed based on a case and within the limits of the workplace. Given the so many diverse work settings, every privacy claim has to be assessed based on the actual workplace conditions. Apparently, detailed written policies can defeat a worker’s privacy expectation when it comes to the utilisation of workplace technology. This is because the continued belief in privacy is not objectively practical after notice. Given that employees are not adequately protected particularly in the modern world, the courts should establish common law principles that determine if workers hold practical expectation of privacy. Employees should make sure that they have read and comprehended their company’s policies are rules. This is because a court ruling depends more on company’s conduct, procedures and policies as the first step in establishing whether employers have infringed employees’ privacy rights. Employees should, therefore, maintain a reasonable privacy expectation and be aware of the call to keep their personal data and work information. An employer has a legal right to protect his reputation, the workplace and work systems. Since employees are not adequately protected, their safest gamble is to develop and keep an apparent line amid private and personal technologies. This will help in preserving the right to privacy.

Work Cited

Baker & Mykenzie, Australian master human resources guide 2010, Australia: Wolter Kluwer Business, 2010.

Beatty, J & Samuelson, S, Cengage advantage books: Introduction to business law, UK, Cengage Learning.

Berman, Audry, Kozier & Erb’s fundamentals of nursing Australian Edition, Australia: Pearson Higher Education, 2014.

Blanpain, R, Labour law, human rights and social justice: Liber amicorum in honour of Prof.Dr. Ruth Ben Israel, Germany: Kluwer Law Internation, 2001.

Davies, Alex, Workplace law handbook 2011: Employment law and human resources, UK: Workplace Law Group, 2011.

Doycle, C & Bagaric Mirko. Privacy Law in Australia. Australia: Federation Press, 2009.

Roebuck, William, Privacy in E-business: promoting respect, trust and confidence in your organisation, UK: BSI, 2004.

Stewart, Cameron, Kerridge, Ian & Parker, Malcolm, The Australian medico-legal handbook, Australia: Elsevier Australia, 2007.

Weiss, M & Schmidt, M. Labour law and Industrial relations in Germany, Germany: Kluwer Law International, 2008.

Zillman, Stephanie, ‘Employee fired for Facebook comments: Spotlight on social media policy Part 1’, HCOnline, 2012. Accessed from http://www.hcamag.com/hr- news/employee-fired-for-facebook-comments-spotlight-on-social-media-policy-part- i-129243.aspx

1
Doyle & Bagaric 142

2
Davies, Alex, Workplace law handbook 2011: Employment law and human resources, UK: Workplace Law Group, 2011

3
Weiss, M & Schmidt, M. Labour law and Industrial relations in Germany, Germany: Kluwer Law International, 2008

4
Stewart, Cameron, Kerridge, Ian & Parker, Malcolm, The Australian medico-legal handbook, Australia: Elsevier Australia, 2007

5
Berman, Audry, Kozier & Erb’s fundamentals of nursing Australian Edition, Australia: Pearson Higher Education, 2014

7
Davies, Alex, Workplace law handbook 2011: Employment law and human resources, UK: Workplace Law Group, 2011

8
Zillman, Stephanie, ‘Employee fired for Facebook comments: Spotlight on social media policy Part 1’, HCOnline, 2012. Accessed from http://www.hcamag.com/hr- news/employee-fired-for-facebook-comments-spotlight-on-social-media-policy-part- i-129243.aspx

9
Baker & Mykenzie, Australian master human resources guide 2010, Australia: Wolter Kluwer Business, 2010

10
Beatty, J & Samuelson, S, Cengage advantage books: Introduction to business law, UK, Cengage Learning

11
Blanpain, R, Labour law, human rights and social justice: Liber amicorum in honour of Prof.Dr. Ruth Ben Israel, Germany: Kluwer Law Internation, 2001

12
Roebuck, William, Privacy in E-business: promoting respect, trust and confidence in your organisation, UK: BSI, 2004