Return To Sender – Protect Your Confidential
Information From Employee Misuse
Employers often express justifiable concern regarding misuse of
email or internet by current, and particularly former employees, to
access confidential or copyright information.
The recent decision of the Supreme Court of NSW in Luxottica
Retail Australia (OPSM) –v– Janet Grant &
Ors is a timely reminder to employers of:
The need to take immediate and urgent steps to minimise damage,
as soon as they become aware of a breach, and
The importance of appropriate clauses in contracts of
employment, codes of conduct and internet and email policies to
protect confidential information.
Grant was employed by OPSM as an optometrist. She subsequently
accepted employment with Specsavers, a competitor of OPSM. Four
days before she resigned she used her manager's computer to
send a number of emails and attachments to her home and work
Grant was immediately dismissed the following day after
OPSM's National Recruitment manager discovered her actions.
OPSM obtained injunctions 2 days later restraining the use of
information attached to 4 of the emails sent by Grant.
OPSM relied upon confidentiality clauses in Grant's
employment contract, company policies relating to Internet and
email usage, and the OPSM's code of conduct.
Although Specsavers and Grant's husband, who also resigned
from OPSM to join Specsavers, were named as defendants, there was
no evidence that they had acted improperly and no additional final
orders were made against them by the Court.
Justice White accepted that Grant sent the emails for personal
reasons, including pride in her input in their creation.
Nevertheless his Honour confirmed that OPSM had rights with respect
to both confidential non-public information and copyright over the
OPSM's early detection of the soon to be ex-employee's
acts and expeditious action in obtaining the injunction restricted
damage caused by release of this information. Although only nominal
damages were awarded, and the issue of costs is yet to be
determined, OPSM maintained and protected its right to property
contained in the email attachments.
The principles considered in this case are equally applicable in
circumstances where employees misuse computer storage devices such
as USB memory sticks or compact discs, to obtain confidential non
public information or copyright documents.
In the circumstances of this case, the Court considered the
employee's actions were relatively innocent and declined to
award additional (deterrence) damages under the Copyright
Act. In other circumstances the Court may not be as
Employers should protect their valuable confidential and
copyright information by ensuring that:
Contracts of employment and codes of conduct sufficiently
define and prescribe employee obligations.
Internet and email policies include details of monitoring
(surveillance) of employee usage, and all employees are notified of
these policies and that monitoring is conducted in accordance with
Action is taken immediately as any breach is discovered. This
will be a major consideration in deciding whether a court will
issue an injunction.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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