The 'new balance'? Employee privacy in Australia:

Abstract

The increasing ability for employers to scrutinise legitimate employee private conduct arguably demonstrates a shift in the balance between work life and private life. This paper will explore these shifting boundaries within the employment relationship, focusing on a recent Australian decision, Telstra Corporation Limited v Streeter [2008] AIRCFB 15. In this matter, an employer was able to dismiss an employee for their dishonesty during an investigation into the employee's lawful out-of-hours sexual conduct which had subsequently created 'difficulties' in the workplace. The paper first considers the evolution of the law concerning employer controls over employee private conduct, and then assesses the implications of this most recent decision on the balance between work life and private life in Australia. It examines what types of out-of-hours conduct could create such 'difficulties' giving rise to employer investigations of private affairs, and considers whether the increasing publication of private conduct through social networking internet websites (such as MySpace, Facebook and other personal blogs) provides greater capacity for employers to monitor and act upon an employee's private conduct. The paper also explores whether there is scope to introduce positive protections for the private lawful activities of employees. Ultimately, this paper questions the impact of the 'new balance' between work and private life upon the welfare of individual employees, and the family, social and community structures within which they function.