Asking for a friend in NSW.
Background - Friend away on "Personal leave" due to sickness and workplace stress. During that period, their work email has been forwarded to the manager without consent or notice.
What is the legality around that and what can be done?
fairwork.gov.au Australian Government Fair Work Ombudsman
What makes you think NSW is not part of Australia, and is therefore excluded in the Australian Government laws?
@Spic3y: The law is prohibitive not prescriptive.
Everything is lawful unless prohibited by legislation.
@Scrooge McDuck: Oh Lord, do you also claim you are not a 'man of the state' when you are detained by the police?
@magic8ballgag: Isn't that how it works though? Something isn't illegal unless something written in law says it's illegal?
@Beanvee: Of course it is. Hopping along the footpath is lawful without any legislation describing it as such. It is lawful by default.
The point to the OP is that references don't need to be provided that any particular behaviour is lawful, because that's not how the law works.
There are plenty of sheeple here who downvote a comment simply because it has previously been downvoted and without understanding it. Most of the time they don't possess the fortitude to show their username by replying to put forward their reasoning.
But sometimes they reply hoping to boost their self-esteem by putting down what they believe is an easy target.
But sometimes they reply hoping to boost their self-esteem by putting down what they believe is an easy target.
Are you stating that's what I've done?
Can you state what you believe to be the error in my original comment?
It came off a little I watch too many crime documentaries.
Are you stating that's what I've done?
I wasn't referring to any sheeple in particular. But it could've been. Was it?
It came off a little I watch too many crime documentaries.
That's not an error. Do you normally base your opinion on feelings over facts?
I wasn't referring to any sheeple in particular. But it could've been. Was it?
I'm not the one that made the statement.
That's not an error. Do you normally base your opinion on feelings over facts?
They were your words. And I really wouldn't label it as an opinion, more of an observation.
@Scrooge McDuck: Perhaps you're looking into my comment too deeply, much like your outlook on the topic of law.
@magic8ballgag: No, it was a really simple, to the point, and basically 100% correct statement as to a very general principle of the law.
@magic8ballgag: It literally says, more succinctly and to the point, my later comment below which is:
To give a slightly more general answer - because we live in a liberal democracy where the principal is "Everything is allowed unless it is specifically forbidden" and not the opposite that "Everything is forbidden unless it is allowed."
Short of a law saying the boss cannot do this, they can. And there is no law saying they cannot.
I just used more words to say the exact same thing. Scrooge McDuck is 100% in the right here. The law is prohibitive (i.e. it only says what you can't do), not prescriptive (i.e. being a list of the only things you can do).
Being prohibitive - everything is allowed unless there's a law which says it's not.
In the context of this discussion, it means it's on OP to find a law that says the employer can't do what they're doing, because absent that law, they don't need a law saying that they can - they can as a matter of default.
Edit: I don't know how much you're trolling and how much you're actually asking, but this is as clear as I can explain it so I don't plan on replying further on this specific subject.
@magic8ballgag: No, and I am not routinely detained by police. Are you?
Can you state what you believe to be the error in my original comment?
@D6C1: NSW Workplace Surveillance Act 2005, Part 2, Section 12.
https://www.legislation.nsw.gov.au/inforce/cda3e2c0-0fd3-606…
Basically if the company policy allows it, then an employer can do it. I do this all the time.
Apart from being their work email?
No, that's literally it. It belongs to work, not to your friend. And no, it's not actually any different in NSW, not in this situation.
being their work email?
There's a keyword in the above.
being?
The artist formerly known as "?" ?
Just looked. Cant see any words on the ceiling
To give a slightly more general answer - because we live in a liberal democracy where the principal is "Everything is allowed unless it is specifically forbidden" and not the opposite that "Everything is forbidden unless it is allowed."
Short of a law saying the boss cannot do this, they can. And there is no law saying they cannot.
So, if I were to gossip with a colleague about someone at work (boss or anyone), can that be used to fire me?
Yup. According to some, Workplace Bullying!
It depends on what was said and who heard it said. Probably it would be a warning, unless it was particularly threatening. Maybe you need to find something better to do than gossip about colleagues.
Say for example, I was considering to quit, and complaining to my colleague how I hate it here, etc.
@duchy: These days there is no real firing.
What they do is give you shit to do, make you bored to death, be unfriendly to you, do the whatever it takes that is borderline of harassment/bullying until you are gone.
@[Deactivated]: I mean, that might hurt your direct manager's feelings, and they could sue your company for not preventing a "hostile work environment" if they didn't fire you. I mean - feelings! How dare you (potentially) hurt someone's feelings? I wonder if the people who support these kinds of policies understand exactly what they're supporting.
If you asked them: "Do companies need to have more options and excuses to fire people", I bet they'd say no. And yet…. this is exactly what this is.
Don't write down something that you don't want someone to read. Like, ever.
No knowledge on the legality but work e-mail is like a pigeonhole in an office stationery room. It exists in the company's property, is visible to many people, and if you use it for non-work things you're asking for trouble.
You will probably find that in their employee contract your friend agreed to the Workplace Surveillance Act of 2005. That means their work can do pretty much anything… even monitor key strokes (as long as employees are notified).
Why is it not legal? Why you would think otherwise?
Is this (warning, .doc file) the legislation you're talking about? One, it's a work email account so it isn't covered to begin with. Secondly, even if it were covered:
The Act requires there to be ‘surveillance’, as that term is ordinarily understood.
Forwarding emails because your friend's email address isn't being monitored because they're on leave is very very standard business practice, and certainly not 'surveillance' in any sense of the word.
If you are sure of the answer why ask the question??
Why? Do you have any legal acts or links to point to?
Key word you used is 'Work' doesn't belong to "YOUR FRIEND"
The email account, and the server on which it resides, literally belongs to the employer. How hard is that to understand?
"But in NSW it's different."
@hooyn: Not that different. I linked a govt guide to the relevant NSW legislation elsewhere in this thread. TL;DR is that it doesn't help OP.
I'm with you, I don't see why it would be illegal. However your reasoning isn't helpful. How about our personal gmail accounts? The email account and the server on which it resides, literally belongs to Google. Can Google do what it wants with our emails? I don't think so.
@ge: Read the T&C mate, that’s exactly what Google does. That’s what helps it to understand your (shopping) preferences. It’s a ‘free’ service after all.
"my friend" - LOL. I'd hazard a guess the OP is also their own "friend". :-)
It depends on what was agreed on with the EBA/email policy/IT Policy etc. But generally Office email account is the owner of the business, and yes the boss can do that.
Most respectful companies would advise the end user though.
At the end of the day it does not matter though, every email is logged and can be looked at by the company's security/ Ethical Standard Unit etc at any time.
Lesson to everyone. Never write anything you do not want the whole world to read.
Yeah try not to send nudes to your boss either
You mean his friends boss, right?
https://www.fairwork.gov.au/how-we-will-help/templates-and-g…
On one level emails probably need to go to the manager to ensure that work issues aren’t missed, the other side is they may be making a case against the person. The golden rule is keep your private emails and work emails separate.
http://www.abc.net.au/news/2017-09-27/what-not-to-say-on-you…
This article shows how bad some organisations can get, though. Be very careful about trashing your employer, even if you think you are anonymous and be aware that if your employer is looking to get rid of you they will use whatever means they think they can get away with. Be temperate with communications and don’t commit in writing if you are being controversial; as the ABC chairman, Justin Milne, found out.
Thanks. The fairwork links are useful.
In case you suddenly thought your 'friend' has a leg to stand on, Fairwork "best practice" guides have no legal force or effect.
No surprises there given it was created to remove income and favourable conditions from employees.
https://www.fwc.gov.au/termination-of-employment/unfair-dism…
They can rule if they think work termination is warranted, if it comes to that. Being dismissed purely for using your work email system for personal emails would be highly unlikely; unless there is something considered injurious to the organisation in them. Not about “legs to stand on” more about common sense and understanding what is likely to be ruled.
@try2bhelpful: I still don't see where OP's friend is being terminated. They're just on leave at the moment - and it's standard that emails to someone who's not in the office would get forwarded to someone else instead of piling up and not being addressed.
@HighAndDry: I agree that the emails being read by management is, most probably, just normal practice. However, it is important for the person involved to keep proper documentation and understand how/why they are stressed and unwell. I’ve certainly seen, with a friend of mine, where an organisation treated him so poorly he ended up on stress leave and then tried to manage him out of his job. If, in this case, the organisation is not trying to manage him/her out, then the exercise will help them to understand what they are feeling, and why. If it is more sinister they are prepared.
@try2bhelpful: This is well and truly on a tangent now, but I think it's someone's own personal responsibility to manage their emotions and feelings and psychological well-being, and that your work isn't and shouldn't be obligated to be involved. It'd be nice if they were, but not an obligation.
@HighAndDry: It depends on if the stress is being caused by issues within the workplace like bullying or harassment. If this is the case then the workplace is, legally, obligated to ensure that these issues are fixed.
@try2bhelpful: If it's legitimate bullying or harassment, sure. But do people not expect adults to be adults anymore, and deal with a bare minimum of issues like an adult themselves? When did we start treating adults like school-children, that the smallest conflict warrants running to the teachers managers?
@HighAndDry: Personally I expect adults not to engage in behaviour that is degrading to others, especially when they are in the workplace. The company should not be facilitating the behaviour of the bully instead it should be protecting the victim. Expressions like “legitimate” bullying and harassment are part of the problem. The difference between what is considered “legitimate” by the perpetrator and the victim can be quite different.
It is difficult for someone who does not have power to stand up to someone who does; particularly if you are a minority and/or young. The adult in this situation would understand what they are saying/doing is offensive and stop it; preferably with an apology.
Personally I expect adults not to engage in behaviour that is degrading to others,
Sure and we can both be disappointed. Except I don't then go running to the government to make a dozen laws forcing people to be nice.
particularly if you are a minority and/or young.
Haha I wonder if you realise you're being inadvertently racist by equating minorities to young people. You realise minorities can be adults with adult faculties and social and negotiation skills too right?
Make sure your friends contacts his/her friends to ensure they keep clear of sending anything to the work address. Your friend is best to keep any communications with the organisation on a, strictly, business footing. Even large organisations can act feral, if the mood takes them, but forwarding emails to the manager is not unexpected here. Your friend does not want to come across as paranoid.
Get them to keep clear documentation on dates, times and issues and what the triggers have been and what correspondence has occurred. Sometimes getting your thoughts together, and discussing the situation with others, helps the person to process the issues. Unfortunately a lot of places are like the frog in hot water, the person puts up with the crap until they break rather than the issues being sorted early on. However, if the issues are brought up earlier the person is thin skinned, can’t take a joke, making an issue about nothing, etc. organisations can be like “lord of the flies”.
Get them to keep clear documentation on dates, times and issues and what the triggers have been and what correspondence has occurred.
Sorry, where are you getting this from? I haven't read anything from OP in this thread about triggers?
@HighAndDry: The friend is on Personal leave due to sickness and workplace stress. Stress is often due to “triggers” that make the person feel out of control. The point I am making is that all this needs to be properly documented in case it gets to any sort of unfair dismissal process. If they don’t have their ducks lined up it is hard to defend themselves. This may not be the intention of the company, but it would be stupid to just assume the company has the employees best interests at heart. I think the OP needs to ensure the friend has someone to listen to their issues and be supportive. As indicated, the discussions with the company should be temperate and businesslike. Don’t give them ammunition, if there intention is to dismiss the employee.
@try2bhelpful: I mean…. potentially good points but you're drawing a pretty long bow from "OP's friend is on leave for workplace stress" to "OP's friend's company is looking to terminate them because they're getting triggered."
Still - only OP, or their friend, knows how relevant this all is I guess.
Just as a data point - I have friends who take "personal leave" all the time because they have it and don't want to waste it. And "workplace stress" is what you call it when you're not actually sick with anything else.
@HighAndDry: My advice is there if the OP thinks it is relevant; otherwise they are free to ignore it. Personally, I don’t take stress leave unless I am stressed so my manager understands I need to step back for a breather for a couple of days. Different work ethic, I suppose :).
Given the person is concerned for their emails this isn’t a couple of days off to go fishing but a genuine stress issue. Most managers just ignore emails for a short time or expect the employee to just use an out of office message so people send messages to them from the bounce back.
Given the person is concerned for their emails this isn’t a couple of days off to go fishing but a genuine stress issue.
I don't know why. I'd be more worried if I was going fishing, in case my buddies decided to ask me if I'm back from said fishing trip.
Most managers just ignore emails for a short time
At nowhere I've worked would this approach fly.
@HighAndDry: Seriously, your managers had all your emails sent to them when you had a couple of days off. I’ve never seen an organisation that did that. The employee puts the managers email address in their out of office and invites the sender to resend to the manager, if they want to. Otherwise it is assumed the email will be dealt with when the person returns. Your manager’s must be very under-utilised if they have time to trawl through your emails, as well as their own.
Your manager’s must be very under-utilised if they have time to trawl through your emails, as well as their own.
No, they keep an eye on it in case there's anything urgent. I guess not required if you're not in a position that deals with anything urgent? The out-of-office message will say: "I'm out of the office until XXXXXXX, if urgent please send to XXXXXXXXX". But the email account itself is monitored too, just sparingly.
OP is basically saying no-one can monitor their friend's email while they're away. That's patently ridiculous, right?
@HighAndDry: Your managers actually go in and check your emails, even if you are gone a couple of days? Never, ever seen that happen. The person sending the email has the decision if something is important and then send it to the managers email. If the manager has a number of people under him that is a big chunk of their time checking, even if it is done sparingly. Most managers don’t even have time to check their own emails.
If I was on stress leave I might be concerned what they were trying to do; particularly if there is already an issue at work. I do agree that, on average, checking emails for an employee that has been gone a while would be fairly standard, but I still think they are more likely to get the employee to put up an out of office indicating the email is not being monitored and get emails resent rather than making the manager check the employees correspondence.
Where does this end, how long after someone has left a company do you keep sending their correspondence to their manager? Out of office should be enough, adults would ensure their emails are being actioned, particularly if they receive an out of office.
@HighAndDry: @HighAndDry in my experience it is very unusual that manager wants to peek in rather than an auto reply like "I am out of office if matter is too urgent contact Mr manager". In all my working life I am yet to see where the "Manager" wants to see the forwards rather than being delegated. Although as others pointed out if done it cannot be illegal.
@try2bhelpful: It would be great if young people these days had 1/10th of the resilience of prior generations…
@[Deactivated]: Maybe a tad harsh a comment. Having come through the crucible that was IT in the '80s I think there have been a lot of positives that have happened since then; including getting rid of smoking in the office and guys not having naked picture of women on their desks. (You tell me there minds are on their jobs if those pictures are there). Fortunately I worked with some brilliant people in my time; really supportive. funny, intelligent people, but I've also had to deal with some right pricks; completely incompetant, total bullies and, often, protected by middle management. I wear "total bitch" as a badge of honour when I've dealt with these people; but I don't blame people when they drown because they have to deal with these tossers, I blame the organisation for not dealing with them in the first place. Unfortunately guidelines are required because some people don't understand what is appropriate behaviour in the workplace. Decrying lack of "resilience" should not be an excuse for not dealing with bullies who exhibit inappropriate behaviour. It is a good way of losing good people, who won't put up with the crap, and all you have left are the useless tossers and their mates.
@try2bhelpful: I don't disagree with what you have written. Take it as me feeling that where 9/10 complaints that would have been raised about a bully in the 80's were probably meaty and with merit my feeling is that less than half would fit that categorisation today. Our safe space world is creating people with a warped sense of others peoples duty to make everything meet their needs, and are forgetting they have a duty to meet the needs of those around them and the world at large.
@[Deactivated]: there is no excuse to bully someone else. If people’s behaviour is causing others distress then just stop doing it, it isn’t difficult. I’ve seen some pretty appalling behaviour and, despite all the training, it is still happening. I’m pretty Bolshie but even I have trouble telling a bunch of guys their comments are out of line. Domestic violence is not a joke, sexual harassment is not a joke but you still read about people who have left jobs because management let crap continue. Why should the bully’s needs overide everyone else’s when they cause the problem in the first place? Especially when the cost is other people’s emotional and economic well being. I have seen many more instances of bad behaviour than people being sensitive. Let the bully “harden up” admit their behaviour is wrong and apologise. A rotten core taints the fruit.
Unless I'm missing something, this doesn't really sound like oversight, just standard process if an employee takes sudden leave to make sure there are no loose ends.
of course legal come on.
they can even put camera on the ceiling. but not inside bathroom.
That's news to me.
Let me just quickly duck to the ladies' room.
Lesson to everyone. Never write anything you do not want the whole world to read.
And? ;)
@Scrooge McDuck: Ain't nothing covert after overnight guacamole, bean and sourcream :D I'm there to engage in some serious business.
Perfectly legal. It's their work email.