|
|
|
|
|
Newsletter
|
|
|
    |
|
|
THE POSTAL SERVICES ACT 1998
Many workplaces have a policy of automatically opening all mail addressed to the workplace irrespective of who it is personally addressed to.
A former employee of a local business found herself in such a situation when a letter addressed to her workplace, containing highly personal information, was opened and read by others in her former place of work. Although the letter was clearly addressed to the former employee it is the standard practice of the business to automatically open all mail that is delivered to the workplace irrespective of whether or not it is addressed to an individual.
The assumption here is that all mail addressed to the workplace relates to business matters and not an employee's personal affairs. In many instances this also includes mail addressed to an employee marked "personal", "private" or "confidential".
Does an employer have an absolute right to open mail that is addressed to an employee or a former employee at the work address?
The Legal Position
Section 23 of the Postal Services Act 1998 ("the Act") sets out the position governing the opening of another person's mail.
"(1) Every person commits an offence against this Act who willfully and without reasonable excuse opens or causes to open any postal article that is not addressed to that person. (2) Every person who commits an offence against subsection (1) is liable to imprisonment for not more than 6 months or a fine not more than $5,000.00."Section 2(l) of the Act defines a"postal article" as:
a letter, parcel, or article that has been posted and has not been delivered..."and Section 2(3) deems a postal article to be delivered ... to the addressee. Therefore if a postal article is opened before it has reached "the hands of the addressee" there will be liability under Section 23 unless there is a "reasonable excuse" for another person opening the mail.
"Addressee" is not defined by the Act but the shorter Oxford English Dictionary defines this as "the person to whom a letter, packet ... is addressed". Where mail is addressed to an employee at the employer's address or in care of an employer, it is only the "addressee" who is entitled to open it (subject to the other person having some reasonable excuse for doing so).
There have been very few cases that have considered this section of the Postal Services Act or what might be considered a reasonable excuse. In an 1864 case in the United Kingdom the Court of Chancery refused to grant an order preventing a former employer from opening letters addressed to the former employee when nothing on the envelope indicated that the letters were intended for the former employee.
Later in an 1884 case the court held that the defendant company should be able to open the former employee's mail but only at specified times of the day when the post arrived. This was to allow the plaintiff to be present when his letters were opened. However it did not prevent the defendant company from opening any letters if the plaintiff chose not to be present.
The New South Wales Privacy Committee ("the Committee") has described the automatic opening of personally addressed mail marked "personal", "private" or "confidential" as one of the more objectionable invasions of privacy in the workplace. According to the Committee all mail marked in this way should be opened only by the addressee. (Employment Guidelines . The privacy aspects of employment practices in the private sector (Sydney, October 1979), para 3.2(c)).
If there is a policy in your company or business to automatically open all mail it might be worthwhile giving serious consideration to the recommendations of the Committee. Alternatively, an employer might consider adding a contractual term to all future employment contracts that permits the opening of all mail addressed to the workplace. In this way legal liability may be avoided.
