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kmslaw
kmslaw, Solicitor
Category: Australia Law
Satisfied Customers: 195
Experience:  I have 15 years legal experience behind me and I graduated from the University of Sydney with First Class Honours in Arts/Law.
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I'm an IT professional that have just joined a company about

Customer Question

Hi,
I'm an IT professional that have just joined a company about 4 months ago. The company is a large enterprise with presence in 50 countries and about 14,000 employees. However, I am a part of a business unit that likes to do everything different from the rest of the company and this includes the IT practices.
I was told that the company's "off site backup solution" was for me to take the backup tapes home and store them at my place of residence for safe keeping in the event of a disaster on site!
Questions that come to mind are:
- Who's liable for for the loss of data if for instance the tapes are stolen from my residence?
- In the above scenario what are the privacy implications of data that may be compromised?
- What are the legal responsibilities of the person being given this "safe-keeping" role?
- Is the company in a legal position to provide an employee with such a responsibility?
What are you concerns that I have not raised above and what are you general advice? I think the company is out of line asking for employees to take tapes home for safe keeping (legally and morally), am I right (legally speaking)? Thanks very much.
Kind Regards,
**** ****
Submitted: 10 months ago.
Category: Australia Law
Expert:  Leon replied 10 months ago.

Good Morning

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

I would not be taking anything home and be held liable for their loss or damage.
You make sure that the company puts in place security measures at their expense at your home and be liable for them.

If there is nothing you will be held liable for any looses or leaks.

You have placed yourself in a high risk position with huge liabilities.

This shoudl not be done unless you have something in writing about you not being liable and the company putting measures in place to secure the tapes and you not being liable.

Customer: replied 10 months ago.
Thank you for the advice, Leon.But this is quite general advice; I clearly have such concerns, have basic understanding that this cannot be right and that I am taking risks and liabilities.I say the following without to offend or otherwise be unreasonable. While I was requesting this, there were choices for different levels of "detail" for the response. I chose the most detailed one. However, I hardly think that several short paragraphs would be deemed as such.I was after more detailed analysis and response that included laws, acts, regulations and references that I could use in my case to advise the GM of the risk that he had been (unknowingly) taking and in retrospect I would like the option of not being part of this risky practise.Can you help me?
Expert:  Leon replied 10 months ago.

Good Evening

In order to do that I would have to take you on as a client and spend time with you in conference and look at your contract.

Costs would be approximately $1,320.00 including GST for 4 hours, taking into account dealing with your employer. We are here to give you general information to guide you.

It is not appropriate nor possible to give you detailed advise without spending time in conference and analysing your contract etc.

I am sorry.

Customer: replied 10 months ago.
Hi Leon,
Thank you for your time, but why would I communicate with a legal professional for telling me what I already know. Clearly I have identified the risks and I was seeking legal specifics of those risks as indicated by my questions; unfortunately none of which have been answered.
Even though due to the nature of the practise you might expect this to be explicitly mentioned in the contract, there is no explicit or implied mention of this practise everying related to role is very general and specifics are more for HR related issues.
Finally, the nature of my enquiry is more legal position seeking (with reference to actual laws and regulation) rather than seeking advice. Furthermore, I'm a member of Professionals Australia who has already reviewed my contact.
So in closing, I think expectations and what can be delivered by this medium has been gravely mismatched. Thanks you for your time, Leon, and also hope that you appreciate that this has been waste of time for both of us; I'm glad though this result was fairly quickly achieved.
Regards,
****
Expert:  kmslaw replied 10 months ago.

Hello my name is***** am a solicitor in NSW who is looking at your conversation with Leon. Are you now seeking to have this matter resolved by another solicitor of our service or are you finished with this service? I just want to let customer service know.

Customer: replied 10 months ago.
Hi Kylie,
The questions that I posed and what I expected were not met and expressed as such by my response at 23 January 2016 10:52. Yes, if you believe you are able and willing to address my concerns as outlined, please do so. Yes, I did request that this be resolved by another solicitor.
Expert:  kmslaw replied 10 months ago.

Okay, well I am a solicitor in NSW.

You said that (and my responses in caps are):

"Questions that come to mind are:
- Who's liable for for the loss of data if for instance the tapes are stolen from my residence? THIS WILL DEPEND UPON HOW THIS RISK IS APPORTIONED IN YOUR EMPLOYMENT CONTRACT OR WORK POLICIES THAT ARE APPLICABLE IN YOUR WORKPLACE (WHICH MAY BE IN AN ONLINE INTRANET, OR STORED ELSEWHERE). IT'S NOT REALLY A MATTER OF LOOKING FOR "laws, acts, regulations and references" AS YOU SUGGESTED, IT'S MORE A RISK THAT THE CONTRACT DRAFTER WOULD EITHER DELEGATE TO YOU, OR TO YOUR EMPLOYER. SO AS LEON SAID, YOU CANNOT REALLY KNOW WHOSE RISK IT IS WITHOUT SEEING THESE DOCUMENTS FIRST.
- In the above scenario what are the privacy implications of data that may be compromised? THE PRIVACY IMPLICATIONS ARE NOT IMPLICATIONS FOR YOU BUT RATHER FOR THE COMPANY. IT IS THE COMPANY THAT HAS THE OBLIGATION UNDER THE PRIVACY ACT 1988. AS YOU CAN SEE FROM THIS PROVISION THE ONLY TIME AN EMPLOYEE'S ACTIONS ARE REALLY RELEVANT IS IN DETERMINING WHETHER THE ORGANISATION IS LIABLE, NOT YOU AS AN EMPLOYEE. YOUR ACTIONS WILL BE RELEVANT TO DETERMINE THEIR LIABILITY. HAVING SAID THAT, THE ORGANISATION CAN STILL POSSIBLY SUE YOU FOR NEGLIGENCE IN LOSING THE DATA, AGAIN, AS LEON SAYS, UNLESS YOUR EMPLOYMENT CONTRACT EXCUSES YOU OF THAT LIABILITY OR SOME OTHER DOCUMENT YOU HAVE SIGNED WITH THE COMPANY OR SOME INTERNAL POLICY THAT IS INCORPORATED INTO YOUR EMPLOYMENT CONTRACT STATES THAT YOU ARE NOT RESPONSIBLE. IT'S NOT THEREFORE A STRAIGHTFORWARD ANSWER, IT DEPENDS ON ALL THAT INFORMATION TAKEN TOGETHER WHETHER A NEGLIGENCE SUIT AGAINST YOU WOULD BE SUCCESSFUL. FURTHER, THE COMPANY MAY, WHEN TAKING THE INFORMATION FROM OTHERS THAT FORMS THE "DATA", IF IT IS PERSONAL INFORMATION, HAVE INFORMED THE PERSON IT COLLECTED THE DATA FROM THAT IT MAY BE EXPOSED TO THIS RISK, WHICH MAY ABSOLVE THE COMPANY FROM RESPONSIBILITY. BUT I'M GUESSING THAT YOU'RE NOT SO MUCH CONCERNED WITH THE COMPANY'S LIABILITY AS YOU ARE YOUR OWN.
- What are the legal responsibilities of the person being given this "safe-keeping" role? THEREFORE, CONSIDERING MY ANSWERS TO THE ABOVE, THE RESPONSIBILITIES OF THE PERSON BEING GIVEN THE SAFE-KEEPING ROLE ARE UNCLEAR. YOU ARE BEST TO SEEK THE COMPANY TO ABSOLVE YOU OF ANY RESPONSIBILITY FOR LOSS OF DATA THROUGH AMENDMENTS TO YOUR EMPLOYMENT CONTRACT OR OTHER DOCUMENTS YOU MAY HAVE SIGNED OR BY CHANGE OF THE INTERNAL POLICY THAT APPLIES. SO MAY I SUGGEST YOU GATHER ALL THE INFORMATION (CONTRACT, POLICY, ANY FURTHER DOCUMENTS SIGNED BY YOU THAT HR MAY HAVE) AND DETERMINE WHAT THE COMPANY IS EXPECTING OF YOU THROUGH THESE DOCUMENTS AND IF IT IS ONEROUS, SEEK TO HAVE THE OBLIGATION THEREIN CREATED TO BE CHANGED TO YOUR ADVANTAGE. THIS MAY NOT BE EASY IF THE COMPANY IS NOT WILLING TO ABSOLVE YOU OF THIS RESPONSIBILITY.
- Is the company in a legal position to provide an employee with such a responsibility? THE COMPANY CANNOT ESCAPE ITS PRIVACY OBLIGATIONS UNDER THE PRIVACY ACT 1988. HOWEVER IT CAN MAKE YOU RESPONSIBLE THROUGH NEGLIGENCE FOR LOSS OF DATA IF IT HAS CREATED IN YOU THIS OBLIGATION THROUGH YOUR CONTRACTS AND OTHER DOCUMENTS/POLICIES AS OUTLINED ABOVE. WHAT YOU CAN ALSO ASK THE EMPLOYER IS WHETHER THE EMPLOYER INSURES ITSELF AGAINST LOSS OF DATA SO THAT IT WOULD BE UNLIKELY TO CHASE YOU FOR THE MONEY INVOLVED IN THIS LOSS, BUT RATHER TO SEEK COMPENSATION THROUGH AN INSURER TO COVER ITS LOSSES AND THE LOSS SUFFERED THROUGH ANY PRIVACY SUIT."

I understand that this doesn't involve legislation, case law etc, but quite honestly, without further details from you as to the terms and conditions of your employment contract, an extensive look at your employer's policies and any other documents signed by you and held with HR, it's not really possible to advise on your particular circumstances. Suffice to know that the company cannot escape its privacy obligations, that your actions may cause it to be liable and that you may, if not protected through special clauses, be sued for the loss of data unless the employer opts instead to instruct its insurer to defend any privacy claims. However, if the data is not just personal information but also trade secrets, intellectual property and the like, you are more than likely to suffer a suit at the hands of your employer for losses incurred in relation to that without them having recourse to an insurer to cover that loss.

I hope that was the detail you were hoping for.

Let me know if anything's unclear.

Customer: replied 10 months ago.
Thank you for your time and your responses, Kylie.Quick question, did you get a chance to read the thread before you answered my questions?I specifically refer to this excerpt:
"Even though due to the nature of the practise you might expect this to be explicitly mentioned in the contract, there is no explicit or implied mention of this practise everying[sic] related to role is very general and specifics are more for HR related issues."However, you keep referring to this document that does not have anything relevant, explicit or implied for this practise. The following is more of what I have received from this platform rather than the experts I have dealt with...Again, I am unclear as to what aspects of my situation is covered by legislation and what aspects aren't covered by legislation. What I legislation, if any I can use to make a case for management or not; so on and so forth. As a result nor am I clear on my legal position. This is probably the worst $115+ I have ever spent in memorable history; No! in my life. I had several levels of service to choose from when I was purchasing this service (asking this question) and I chose the highest level of service that promised "In-depth" or "detailed" which sets a sort of expectation that I just have not received on this platform. Seriously, if I knew the responses were going to be like this I could have had 30 mins for $50 with my local solicitor who would have given me these exact responses, which would have been exactly what I would have expected...(and no disappointments) I'm just not happy with this; this is not what I had expected...Kylie, I don't know; I paid for a "detailed" service. Do you, the persons who provide the actual work get an indication of what service I have paid for? If so, then my definition/understanding of "concise", "average" and "in-depth" is very different from the meaning those terms entail in this platform.Bot***** *****ne "Not happy, Jan".
Expert:  kmslaw replied 10 months ago.

Since you seem to be refusing to show me a copy of the contract, I will tell you. I am looking for a line that may say that policies of the company are incorporated into the terms of your contract. In that case, you would need to check the company policies as well. You have not yet answered this question. The reason that this is important is because you do not have any rights in relation to this situation other than that which is detailed in the contract. I am not trying to overlook what you said previously about what is in it, I am trying to help you locate something that may help you. You have no legislative rights.

You did not make it clear the question you wanted answered was that you wanted to go to your employer and convince them to take responsibility. You put forward to me 4 questions and I answered them. But since (reading through the lines) you seem to be asking how do you convince management that they should take responsibility and not you for the protection of the backup tapes, I will answer that question now. The answer is, you do not have a legal right to change their mind about this. Put simply: the job they have offered you is what is on offer. If you are going to convince them that they should take the backup tapes and you shouldn't, you will need to rely on your persuasiveness that it will be safer in their custody (but doing so will necessarily be an admission on your part that you can't be responsible for something they want you to be responsible for). They are delegating to you this responsibility and if you don't like it, they MAY just find someone else who will. This is probably not the answer you want, but it is the reality.

If you were minded to tell them that the company will be held responsible under the Privacy Act 1988 if the data was lost and personal information was therefore released, they would simply point the finger at you for not being responsible with a task that they have delegated to you.

There is no legislation placing an obligation on you with respect to the data, the duty is created by the employer in its expectations of you in your role (through your contract). So it's nonsensical to say that I haven't informed you of the aspects of what is covered by legislation and what is not. Put simply again: the law of negligence, which would hold you responsible before your employer for loss or damage to the tapes, is not legislative, it is common law and there is no other legislation placing an obligation you in this situation.

There is no other reference to legislation in this answer because the rights that you have only arise under contract, which is a common law right. And therefore if you don't have any right in your contract to escape your responsibility, then you have no right unless the employer wishes to change your contract.

Now a short word about your attitude towards my service. It's a little insulting to say that that the hour (yes, it's been an hour that I have worked on this solution for you) is not a detailed solution. It's completely uncalled for for you to be dismissive of my efforts. I have given you the legal framework, it's just the case that you don't like that there isn't a way out for you with this. Sometimes I have to deliver bad news. That's not my fault, and I have applied my exceptional legal knowledge to this question. Furthermore, I only get paid a small proportion of what you pay for this service. So to be fair, it was your choice to pay most of the fee to JustAnswer instead of directly to a solicitor who may have been able to give you what you wanted in half an hour. I expect greater respect for the service I have provided.

I hope that this has helped you today. Let me know if anything remains unclear.

Customer: replied 9 months ago.
Hi Kylie,
I'm forced to re-read my contract, I do not remember any such references but I'll be wary for any external policy or otherwise references.In response to your closing remarks, firstly, I am not afraid of bad news. Nor am I afraid to lose my job over this. If I am taking unreasonable risk, I am more than happy to advise the management about this, and if they will be unreasonable to my reasonable requests, well, fine, they can find someone else who will be their mindless minion. Furthermore, I meant no disrespect nor to belittle your efforts. Obviously I was alluding to the fact that I am not getting what I wanted out of this service. No need to take it personal, besides, most of my address if not all was to JustAnswer.However, your response above has been more like what I was looking for, and thank you for that. Let me re-read and review in light of your above response. I anticipate that there will be very little if any follow-up queries. Thanks again.
Expert:  kmslaw replied 9 months ago.

That's fine Umit. If you are happy with my response, please rate my answer. Best wishes for a good result. Kylie