QUESTION – Answer the question below
Clara seeks your advice as an expert in electronic workplace law.
Clara has worked for the last 18 months for a contemporary legal advice business,
Lawyers On Call (“LOC”), which has tried to break away from the traditional law firm
mode of providing legal services.
LOC runs a small head office in Melbourne, which, with a few administrative
employees and a client relationship manager (Petra), serves also as a city base when
needed for the 35 legally trained workers it engages. The lawyers engaged by LOC
often work in the offices of law firms or businesses that engage LOC’s services. Where
LOC’s lawyers work in LOC’s clients’ offices, the lawyers bring their own laptops with
them and are paid by LOC, which invoices the client firms or companies that engage
LOC’s legal services. This provision of lawyers “on call” is seen as meeting clients’
needs by having the lawyer readily to hand in the office, and giving responsiveness in,
and flexibility to, the way legal services are provided.
In addition LOC directly provides on-line legal services to individuals and companies
without LOC’s lawyers being on the clients’ premises. This work is commissioned online with lawyers rarely meeting their clients face-to-face, and all communications
between LOC, its lawyers and clients are by electronic means. Whilst the lawyers can
work anywhere when providing this commissioned work, and most usually work from
home, there are strict protocols laid down by LOC on the manner and timeliness of
communications and the legal advice provided.
Clara tells you that she loves the freedom and variety of different work locations – at
home or in clients’ offices. However one of her recent jobs allocated by LOC was
working at a company’s premises in a small town in regional Victoria. Frustrated over
several months by her long daily commute with bad connections between train and
bus, she tweeted on her personal Twitter account (whilst waiting at the bus stop):-
“Heading again to no man’s land – oops, I mean the fresh air of the country – to
knock sense into the ‘local yokels’ who want five star legal advice to solve their
petty corporate problems, but are bad payers. Ah well, at least this stint’ll be
over soon.”
She tweeted to her friends, which she had forgotten included LOC’s client relationship
manager. Petra was usually quite amused by Clara’s tweets and regarded her as “a
real character”. On this occasion though, Petra did not see anything funny in the tweet
– she immediately texted Clara to tell her to come into head office straight away. At the
meeting, Petra told Clara that she must obey LOC’s social media policy in her
engagement contract and that Clara should regard this as a warning to behave
professionally at all times in the future, or face dismissal. Petra also said: “I am
revoking your privilege to work wherever you please, and I will not consider any
request from you to work remotely (apart from when a client requests you to work at
their premises) as I must keep an eye on you at all times in the office.”
Clara tells you that LOC’s social media policy was simple – it provided that:
“No personal Twitter or social media accounts shall be used by any lawyer while
representing LOC in its business activities.”
This policy was communicated by way of a pop-up message on lawyers’ computer
screens, and Clara could not find anything expressly written in the engagement
contract about social media policy.
Later, after her meeting with Petra, Clara, fortified in her belief that LOC had no right
to dictate the use of personal Twitter or other accounts of workers, tweeted:
“Beware of businesses that try to gag their workers’ right to free speech! If
you’re thinking of joining me at my workplace (that I will not name here), then
think again!”
At the same time as Petra learned about Clara’s latest tweet, she discovered that Clara
had been ignoring client queries or emails that were outside what Clara deemed
“standard business hours” of 8.45am to 5.00pm. Clara explains to you that she was
simply observing the global “right to disconnect” electronically from the workplace that
every worker has – a right not to be at the beck and call of clients 24 hours a day – and
that she was adhering to reasonable hours of work as provided in the National
Employment Standards in the Fair Work Act 2009 (Cth) so that health problems that
might arise if these reasonable hours were not observed could be prevented.
Clara now fears that LOC will terminate her services, as she has been called to another
meeting with Petra. She wonders if she would have a successful cause of action under
the Fair Work Act 2009 (Cth) against LOC should she be dismissed and what legal
issues might be raised in any such action.
Clara also wants to know what are her legal rights with respect to the issue about her
use of her personal Twitter account; her being denied working at home rights; and her
adherence to the “right to disconnect” from the workplace.
Write a memorandum of advice for Clara answering her questions. If you need further
information to provide advice to Clara in answering her questions, please explain what
that information is and why it is needed.
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