Counting the cost of cyberstalking
Counting the cost of cyberstalking
In addition to the emotional trauma endured by the victims, hi-tech sexual harassment in the workplace is also emerging as a major threat to employers, writes David Davies, Partner with legal firm Sparke Helmore.
The Human Rights and Equal Opportunity Commission (HREOC) review of sexual harassment complaints in Australia earlier this year revealed that sexual harassment increasingly involves sexually explicit emails, SMS messages, pictures, screen savers, and access to sexually explicit internet sites.
The growing popularity of email and Internet usage in the workplace is placing employers at significant legal risk. Employers should be able to anticipate and eliminate or control the risk that their employees will be harassed or cyberstalked by fellow employees or external parties, and be equipped to deal lawfully with any offending employees.
Harassment taking on new forms
A review by the Human Rights and Equal Opportunity Commission (HREOC) of sexual harassment complaints in Australia has revealed that sexual harassers are keeping pace with technology. In recent years, sexual harassment has increasingly involved:
• Sexually explicit emails and SMS messages;
• Sexually explicit pictures and screen savers; and
• Access to sexually explicit Internet sites.
Harassment by email or via the Internet may also involve:
• Material that is discriminatory on the basis of race, age or sexual preference; and
• Abusive or threatening emails.
Cyberstalking
Email and the Internet have provided stalkers with a new means of communicating immediately and directly with their victims while still maintaining a physical distance.There are three main types of cyberstalking:
• Email stalking through sending obscene and/or threatening messages, viruses and spam via email;
• Internet stalking through impersonating the victim online, disclosing the victim's personal details online, publishing images of or defamatory comments about the victim online, and tracing the victim's use of the Internet; and
• Computer stalking through the unauthorised control of the victim's computer.Victoria became the first Australian jurisdiction to explicitly proclaim all three types of cyberstalking to be criminal offences when the Crimes (Stalking) Act 2003 (Vic) commenced in December 2003.
The legal consequences for employers
Legal consequences arising from the misuse of email and the Internet at the workplace for employers include:
• Harassment and/or discrimination claims against an employee, for which an employer will usually be vicariously liable unless they took 'all reasonable steps' to prevent the harassment or discrimination;
• Psychological injury claims, which were recently estimated to cost an average of $93,100 per claim at Commonwealth level; and
• Prosecution for breach of occupational health and safety legislation if an employer, by failing to identify, assess and eliminate or control the risk of cyberstalking or harassment in the workplace, has failed to ensure the physical and/or psychological health of their employees.
Employers should also be aware that their risk profile extends beyond the physical boundaries of the office. For example, liability may flow from a pornographic image being emailed to an external recipient or from an employee being cyberstalked by a customer.
When to terminate employment?
While it may be tempting to summarily dismiss an employee for harassment, cyberstalking or other misuse of email or the internet, recent decisions of the Australian Industrial Relations Commission (AIRC) have underlined the importance of affording procedural fairness and carefully considering the circumstances of the case before terminating an employee's employment.
In Reynolds v CFA (13 August 2004), an employee was on leave when a one month moratorium to remove sexually explicit material from employees' work computers was put in place. The AIRC found it was harsh, unjust and unreasonable to dismiss the employee for storing inappropriate material on his computer without giving him the chance to take advantage of the moratorium.
In Centrelink v Williams (15 January 2004), a customer service officer was dismissed for using his work computer to send 23 inappropriate emails. These included pornographic and other sexually explicit images to other employees and to external recipients. A total of 24 employees were investigated for misuse of email at the same office. The sanctions applied ranged from termination of employment to reprimands, demotions and/or salary reductions.
Sparke Helmore represented the employer in the AIRC and successfully argued that the dismissal was not harsh, unjust or unreasonable despite the varying sanctions imposed on the investigated employees. The AIRC emphasised the importance of consistency in the treatment of employees, but noted that consistency relates to the procedural steps in the investigation, not the degree of the sanction imposed.
Factors to consider before dismissal
In Centrelink v Williams, the AIRC suggested that the following factors should be considered when determining the appropriate sanction for an employee who has misused email or the Internet:
• The nature and extent of the offending conduct;
• The nature of the material involved;
• Whether the material was sent to external recipients;
• The seniority of the employee within the organisation; and
• Whether the employee showed contrition.
In Reynolds v CFA, the AIRC said that it was inappropriate to store sexually explicit jokes, cartoons and images on an employee's work computer because "such images may offend generally individual rules of morality and common decency". However, it was not prohibited by the employer's IT policy and therefore did not constitute a valid reason for termination of employment.
How can employers eliminate or control the risks?
Employers should be able to identify the risks created by new technology and implement appropriate policies to deal with them.
HREOC's Sexual Harassment Code of Practice recommends the following:
• Establish, implement and communicate to all employees a written policy which clearly prohibits inappropriate use of computer technology including the Internet, email and screensavers;
• Prohibit employees from forwarding offensive emails they have received from another source, since there is no way of knowing whether recipients will be offended; and• Warn employees that evidence of emails sent and websites accessed remains on a computer system even after they have been deleted by individual users.
Finally, employers should also:
• Encourage a culture of reporting instances of harassment, cyberstalking or other misuse of email and the Internet;
• Ensure that employees receive training on the contents of the policy;
• Ensure that they have the technological capability to prove the conduct so that the policy is legally defensible;
• React appropriately if they become aware of harassment in the workplace, including investigating the allegations and imposing a sanction, if appropriate, on the employee; and
• If harassment or cyberstalking of an employee is perpetrated by a non-employee, consider obtaining, or assisting the employee to obtain, an intervention or apprehended violence order.
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