The VGSO’s guide to sexting

An employer in a Federal Court proceeding was recently forced to defend an attempt by a dismissed employee to have a number of private text messages - allegedly left on a work-issued mobile phone after it was issued to another employee - admitted into evidence.

Shea v TruEnergy Services Pty Ltd concerned an employee who had been dismissed by her employer, TruEnergy, on the grounds that her position had become redundant. The employee brought proceedings alleging that she had actually been dismissed for exercising a workplace right by making a number of complaints, and that her dismissal therefore constituted adverse action within the meaning of the Fair Work Act 2009 (Cth).

One of the employee's allegations during the course of the trial was that a culture of lewdness and sexual harassment prevailed in the workplace and that it was condoned by the managing director. She sought to have admitted into evidence a number of mobile phone text messages, apparently between the managing director and a former general counsel at TruEnergy with whom he was allegedly having an affair. Their content was, it was alleged, of a sexually explicit nature, and the employee submitted that this established the managing director's propensity to use lewd and sexualised language in the workplace.

The employee obtained the text messages via another former employee of TruEnergy who allegedly had been given a work-issued mobile phone that had not been cleared of its messages. That former employee still had possession of the phone and had failed to return it following the cessation of her employment.

TruEnergy sought to resist the admission of the text messages as evidence on the grounds that they were not relevant to any issue in the dispute, and in any event should be excluded as they were improperly or illegally obtained.

Justice Dodds-Streeton of the Federal Court agreed with TruEnergy and refused the admission of the evidence, finding that not only were the text messages 'intensely personal' communications, they were not relevant to any issue in the litigation. Her Honour also rejected the submission that, even if their contents could be described as 'lewd', it did not follow that the managing director would use such language in the workplace. Further, the messages were inadmissible due to the irregular or improper manner in which the employee had obtained this confidential material.

Although the contents of the mobile phone in this instance was held not to be admissible, this case serves as an important reminder to departments and agencies to ensure that employer-issued IT hardware, such as mobile phones and laptops, is properly wiped prior to being issued to a new employee, and that all equipment issued to an employee is recovered and retained when that employee leaves.

The case is also a reminder that, when it comes to evidence, relevance is still king. Even though litigators today have access to so much more information on phones, computers and social media, it's only going to be admitted into evidence if it is relevant to issues that the court or tribunal have to decide. In this sense, this case is just an example of old principles being applied to new (and fantastically salacious) facts.

If you are in the Victorian Government and you are thinking about sexting from a work phone, how about you first seek advice from:

Katie Miller
Managing Principal Solicitor
t 8684 0460
katie.miller@vgso.vic.gov.au

Retta Berryman
Trainee Solicitor
t 8684 0468
retta.berryman@vgso.vic.gov.au