Short Answer:
With increasing workloads and the adoption of flexible working arrangements, more and more of us are conducting work from our own homes. Commonly, we think very little of taking work-related material out of the office, often emailing ourselves the relevant information.
However, doing so can give rise to issues such as breaches of company policy, employment contracts, confidentiality and copyright.
First and foremost, you need to seek approval from your employer before emailing or taking information from the workplace. Generally, information can be sent home for a work related purpose, unless it is otherwise stipulated in your employment contract or your employer’s policies and procedures.
If your employer is seeking to reprimand you as a result of removing work-related information from the office, you need to seek legal advice to ensure you are not being treated unfairly.
Long Answer:
In cases where your employer’s policies and procedures or a clause in your employment contract expressly states that you cannot take or send work-related information home, your first action should be to obtain approval from your employer before removing anything from the workplace. In the event you don’t seek approval, your employer may argue that a substantial and willful breach of their policy has occurred, which may provide them a “valid reason” for your dismissal.[1]
Where no policy exists and there has been no direction from your employer not to take work home, it will generally be the case that if information is taken for a work related purpose, there will be no breach.[2] In these instances, you should still first seek approval from your employer.
In cases where your company asserts a copyright over particular documents, sending those documents to your own email address constitutes reproduction in a material form under the Copyright Act 1968 (Cth);[3] you will be in breach of copyright laws by sending copyright material from your work email address to a personal email address.[4] It is extremely important that you seek the approval of your employer before sending any copyright material to an outside email address.
Where there is no express provision preventing the taking or sending of work-related information home, employers may also attempt to rely upon confidentially policies and contractual obligations. The law is mixed as to whether confidentiality is breached as a result of taking or sending work-related information home. Whether there is a breach of confidentiality will depend heavily upon the purpose for which you’ve taken the information.
In Actrol Parts Pty Ltd v Coppi,[5] an employee sent emails containing confidential material from his work email address to his home email address. In this instance, the Court found that the employee had done so for ‘legitimate reasons connected with employment… he had the legitimate reason of working from home for sending work emails with attachments there.’[6] The Court believed the information was sent for a work related purpose, not an improper one, and was therefore not contrary to the contract of employment or company policy.
In contrast, an employee in Tate v 4WD & Outdoor Supacentre Pty Ltd[7] sent his employer’s confidential sales figures and product lists to his personal email address, for the purposes of setting up a rival business. The Court said this ‘amounted to an inappropriate use of commercially sensitive information with which he had been entrusted’,[8] breaching confidentiality.
Luxottica Retail Australia Pty Ltd v Grant[9] provided an example in which the employee both did and did not breach confidentiality. An employee sent a number of emails from work to her private email address, as well as to her husband’s email address, containing documents such as training manuals. The Court indicated that ‘by simply emailing herself information, this did not breach any confidentiality in the information contained in those documents.’[10] However, sending the email to her husband was a disclosure or attempt to disclose those documents, and breached confidentiality.[11]
It is clear from these cases that the circumstances and reasons for which the information has been removed from the workplace will be a deciding factor in whether or not confidentiality has been breached. You should seek the advice of a lawyer to assess your individual circumstances, as each case is different.
[1] B, C and D v Australia Post [2013] FWCFB 6191 [36].
[2] Klibschon v Tessa Advisory Group Pty Ltd [2016] FWC 6393.
[3] Woolworths Ltd v Olson [2004] NSWSC 849 [330].
[4] Luxottica Retail Australia Pty Ltd v Grant & Ors (2009) 81 IPR 26 [30].
[5] Actrol Parts Pty Ltd v Coppi (No 2) (2015) 257 IR 179.
[6] Ibid [71].
[7] Tate v 4WD & Outdoor Supacentre Pty Ltd [2015] FWC 626.
[8] Ibid [87].
[9] Luxottica Retail Australia Pty Ltd v Grant & Ors (2009) 81 IPR 26.
[10] Ibid [23].
[11] Ibid.