On May 16th, Arbitrator Allen Ponak ruled that e-mails an employer collected from its IT system were inadmissible in a discharge case because the employer collected the e-mails in breach of the grievor’s privacy.
The employer (a public sector union) discharged the grievor for being a known associate of a motorcycle club and denying the association when confronted. The employer proceeded with the discharge after finding incuplatory e-mails between the grievor and his wife. It retrieved these e-mails after receiving an e-mail from the Ministry of Justice indicating that it had received a “letter of concern” about the grievor from a local police force. It did so without following up with the Ministry of Justice.
Arbitrator Ponak dismissed the employer’s “no expectation of privacy” argument based on the Supreme Court of Canada reasoning in R v Cole. He held that the intrusion associated with the employer’s search was “heightened” given it was examining e-mails between the grievor and his wife and said:
I am satisfied while the need for an investigation of the Grievor was justified, the search of emails to and from his spouse was not reasonable at the time it was carried out. Relying only on second or third hand information about the Grievor, the Employer’s first and immediate response was to scrutinize his personal emails. There was no evidence that alternatives to this invasive search were considered, possibly because the Employer believed that it owned the email system and no barrier existed to such scrutiny. It was also relatively simple to carry out.
I accept the Doman principle that it is unreasonable to conduct a highly intrusive search before other less intrusive alternatives are considered. For example, the Employer did not contact the Grievor for an explanation after receiving new information on January 15 about his exclusion from corrections facilities and about a police investigation that seemingly implicated the Grievor. The Employer did not seek more details from the Ministry of Justice or the police regarding the allegations. Other LRO’s who might have relevant information were not canvassed. Any concerns about possible permanent deletion of emails and files (I hasten to add there was no evidence to suggest such a concern) could have been handled by putting a temporary freeze on the Grievor’s account. If these and other investigation avenues had proved unsatisfactory, then perhaps the legitimate interests of the Employer in obtaining more information would have trumped the Grievor’s right to privacy, justifying, with safeguards, a search of personal emails. Instead, the Employer went immediately to the Grievor’s email, discovered multiple and obviously personal emails with photo attachments from the Grievor’s wife in a file of deleted emails, and examined the photos. It is difficult to imagine a more intrusive invasion of personal privacy.
This is the first case I’m aware of in which a labour arbitrator has excluded evidence because an employer breached an employee’s privacy in searching its own IT system. It is, however, more illustrative than it is significant because of the facts outlined in the two paragraphs above. After R v Cole employers simply cannot continue to act as if employees have no expectation of privacy in information stored on a work system. Rather, they must conduct investigations in a manner that demonstrates respect for the an existent, albeit limited, employee privacy interest.