The Alberta Court of Appeal’s June 22nd judgement in Poliquin v. Devon Canada Corporation is not a privacy judgement, but contains some very strong dicta supporting employers’ interest in controlling employee use of their computer systems.
The case is about an employer that terminated a long-service supervisor for, among other things, sending and receiving pornographic and racist e-mails. In holding the employee’s wrongful dismissal claim ought to be dismissed summarily, the Court of Appeal made the following remarks:
It is important to situate a document like the Code of Conduct in the larger workplace context. Employers have the right to set the ethical, professional and operational standards for their workplaces. Doing so not only falls within an employer’s management rights, it also constitutes an integral component of corporate good governance. The workplace is not an employee’s home; and employees have no reasonable expectation of privacy in their workplace computers. It therefore follows that while employers may permit employees limited personal use of workplace computers, the employer is entitled to restrict the terms and conditions on which that use may be permitted. Devon did just that. Employees are permitted to use Devon’s equipment “for limited personal use”, but such use must be in compliance with the Code of Conduct: App. Key Evidence, Vol. 1, A83. The Code of Conduct expressly provides that prohibited use of e-mail includes “[s]ending…pornographic, obscene, inappropriate or other objectionable messages or attachments via e-mail to anyone”: App. Key Evidence, Vol. 1, A83. Further, harassment is defined under the Code of Conduct as including “[v]isual conduct such as pornographic or derogatory…e-mails…”: App. Key Evidence, Vol. 1, A80.
Employers have good reason to be concerned about the misuse of their equipment and resources in order to access, receive and disseminate pornographic or racist material. The potential for harm to an organization flowing from this kind of misconduct is great. It can easily poison a work environment, thereby denying equal employment opportunities to others: Backman v. Maritime Paper Products Ltd., 2008 NBQB 219 (CanLII), 2008 NBQB 219, 67 C.C.E.L. (3d) 261 at paras. 9-11. Since work is an essential aspect of an individual’s personal life, an employer owes obligations to all employees in its organization. It cannot turn a blind eye to discrimination or harassment in its workplace: Menagh v. Hamilton (City), [2005] O.T.C. 898 at paras. 46 & 287 (S.C.J.), aff’d 2007 ONCA 244 (CanLII), 2007 ONCA 244. As the Ontario Court of Appeal recognized in Gonsalves v. Catholic Church Extension Society of Canada 1998 CanLII 7152 (ON C.A.), (1998), 164 D.L.R. (4th) 339 at para. 10, 39 C.C.E.L. (2d) 104, an employer “has a duty to all the employees both to end the [sexual harassment] and to alleviate its impact upon the employment environment.” See also Tellier v. Bank of Montreal reflex, (1987), 17 C.C.E.L. 1 at 12 (Ont. Dist. Ct.), where the Court recognized that an employer has “a heavy responsibility to protect its employees.”
If an employer fails to act, it faces a significant risk of actions by employees who are subjected to discrimination or harassment – and properly so: see for example Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (S.C.C.), [1987] 2 S.C.R. 84 , 40 D.L.R. (4th) 577; Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (S.C.C.), [1989] 1 S.C.R. 1252, 59 D.L.R. (4th) 352; Bannister v. General Motors of Canada Ltd. 1998 CanLII 7151 (ON C.A.), (1998), 164 D.L.R. (4th) 325 at para. 20, 39 C.C.E.L. (2d) 91 (Ont. C.A.); and Tellier at p. 12. Therefore, employers are fully justified in taking proactive steps, including the adoption of codes of conduct, to curtail and prevent improper conduct.
There are other negative consequences an employer may suffer when an employee misuses its equipment and resources for pornographic or racist purposes. The reputation of an employer in the business and wider community can be seriously compromised when even one employee engages in this kind of behaviour, particularly where that employee holds a senior supervisory position. It can also adversely impact on the work – and work ethic – of the employee in question given the very real risk that the misuse will occur in whole or in part on the employer’s time. And then there is the threat to a company’s information technology systems. Computer operating systems can be infected with worms and viruses introduced through inappropriate accessing of pornographic and racist websites or through receiving tainted material downloaded from these websites. In addition to these concerns, this kind of misconduct increases the risk that other ethical and professional boundaries will, by reason of the employer’s perceived tolerance of the original misconduct, be more readily crossed, not only by the affected employee, but by others within the organization, or even perhaps outside it (like suppliers to a company).
In summary, an employee’s misuse of a workplace computer for pornographic or racist purposes negatively affects an employer’s professional, ethical and operational integrity. Employers are not required to tolerate the misuse of their computers and Internet access any more than they are required to put up with serious incidents of dishonesty by employees. When an employee steals money from an employer, the theft and resulting damage is at least confined to that employee. But where dissemination of pornographic or racist material using the employer’s computer or Internet access is concerned and especially where the employee’s e-mail address includes the employer’s identity, this is not necessarily so. In the information technology world today, e-mail can be disseminated to many inside and outside an organization with the click of a mouse. Accordingly, the harm done may well be far more serious and pervasive. This reality substantially increases the risks to employers flowing from the misuse of their equipment and Internet access for improper purposes. For these reasons, an employer is entitled not only to prohibit use of its equipment and systems for pornographic or racist purposes but also to monitor an employee’s use of the employer’s equipment and resources to ensure compliance.
Please forgive the lengthy quote, but it is a fairly powerful excerpt and handy to us management lawyers.
For Michael Fitzgibbon’s excellent discussion of Poliquin and the availability of summary judgement in wrongful dismissal cases, see here.
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