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No sex please - this is your workplace
One of the more colourful theories that I have read about the beauty of the internet was that espoused by Tom Wolfe - the rather eccentric author of Bonfire of the Vanities.
Mr Wolfe suggests that the advent of the internet has facilitated the Christian concept of "convergence", whereby all members of human kind are caused to be drawn together into what is effectively a singular moment of revelation. Mr Wolfe's theory, of course, is that the internet has facilitated this great meeting of minds.
Regrettably, the statistical proof about use of the internet tends to rebut Mr Wolf's appealing theory. This data informs us that what appears to draw us together on the internet is something quite different: sex. Something like 90% of all internet use is apparently related to pornographic content.
Most employers naturally take the view that, although use of the internet is now a necessary part of business (perhaps a convergence of a commercial sense), accessing pornographic content in the workplace is an unacceptable use of this technology.
Many employers have taken steps to protect their machinery from being used for what it deems inappropriate purposes. Amongst other things, this may include the introduction of "blocking" software (to prevent pornographic material being accessed), and the introduction of workplace policies which prescribe acceptable levels of conduct for employees, and outline the action that may result in the event of a breach.
A recent case, Beazley v Telecom New Zealand Limited (Unreported, Employment Relations Authority, Auckland, 26 March 2003) illustrates the importance for employers of having robust systems - and workplace policies to back them up.
Mr Beazley was employed by Telecom as an account manager. In June 2002, Telecom commissioned an external organisation to conduct an audit of the computers in Mr Beazley's workplace. Through this audit, Mr Beazley was identified as one of two employees (out of a total number of 460) that had accessed inappropriate pornographic material through Telecom's internet system.
Telecom viewed this finding very seriously. It employed a computer expert to use a forensic computer analysis programme to take a closer look at Mr Beazley's computer use. The ultimate outcome of that investigation was a finding that Mr Beazley had accessed various pornographic sites on different dates during work hours, that this use did not appear to be accidental access (through opening email attachments in error) and that there was no doubt that this activity was linked to Mr Beazley's user identification.
Armed with these findings, a meeting was arranged with Mr Beazley. The Telecom manager who attended that meeting made a file note recording that Mr Beazley had admitted that he directly accessed pornographic websites, and that other employees were aware of his password - meaning that they also could have accessed pornographic websites through his computer (and without his knowledge). On the basis of these admissions, founded upon the investigator's findings - Telecom made a decision to dismiss Mr Beazley.
The first - and perhaps most important - point to note about this case is the significance of Telecom's Internet Usage Guidelines. Amongst other things, this policy (which had been issued to Mr Beazley and of which he was aware) made it clear that it was not acceptable to use the company's internet connection to look at pornographic or objectionable material.
Further, Telecom's policy required users to have passwords in order to access the internet system - and prohibited employees from sharing their user identification or passwords with co-workers.
The second significant observation about this case relates to the expert evidence which Telecom sought - and was able to rely upon - in reaching conclusions about Mr Beazley's computer use. The evidence which led to Mr Beazley's dismissal was that of a forensic expert.
Mr Beazley chose to challenge Telecom's decision to dismiss him. Amongst other things, he sought his own expert advice - and produced evidence that was intended to bring into question the certainty of the findings of Telecom's expert. He also raised issues about Telecom's motive in dismissing him.
The Employment Relations Authority was unimpressed with Mr Beazley's challenge. It decided that, although Mr Beazley had produced some expert information after his dismissal (and for the Authority's consideration) its task was to consider whether Telecom had acted reasonably upon the information available to it at the time of dismissal. The Authority held that Telecom had acted reasonably on the basis of the expert evidence that it had. The Authority dismissed Mr Beazley's other arguments.
This recent case illustrates the importance for employers to take appropriate steps to address inappropriate use of internet systems. It serves as a reminder of the importance of having workplace internet policies, and of the need to rely upon appropriate evidence in reaching any decisions about internet usage in the workplace.
