September 11, 2013
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When can an employee be dismissed for "just cause" for viewing inappropriate e-mail content at work? The New Brunswick Court of Appeal recently considered this question in the context of an employee who had been summarily dismissed after receiving and viewing pornographic content at work in Asurion Canada Inc. v. Brown and Cormier, 2013 NBCA 13.

Two employees at a Moncton call centre had a common friend outside of work. Between May and July 2010, the friend sent them more than a dozen unsolicited e-mails, with attached images. The employees either deleted the e-mails and attached images or transferred them to their personal e-mail addresses. Neither employee asked their friend to stop sending the material.

The employer became aware of the e-mails through its network monitoring systems and it considered them pornographic.

The Employee Handbook contained guidelines for voicemail, e-mail and computer use. The guidelines explicitly prohibited the transmission, receipt or storage of any information that was discriminatory, profane, harassing, or defamatory, including sexually explicit material. The guidelines cautioned that any violation of the policy could result in disciplinary action, including termination. The Employee Handbook also contained provisions concerning sexual harassment in the workplace.

The employer held separate meetings with each of the employees. Both were terminated for "just cause".

The Court of Appeal eventually found that the employer’s response was disproportionate to the employees' behaviour which, in this context, did not warrant termination for just cause (summary dismissal, without notice). The Court observed that receiving and viewing the pornographic content did not constitute gross misconduct. In the Court's view, the employer's "puritanical approach" was not warranted by its business interests, and a lesser penalty would have been appropriate.

These particular employees had lengthy and unblemished employment records, they were forthright when confronted about the e-mails, they did not disseminate the e-mails within the workplace, and the workplace was not a particularly sensitive or vulnerable one. Had any of these factors been at play in this case, the Court might have come to a different conclusion.

Computer use policies continue to have increased importance today for managing suitable behaviour at work. This is particularly the case in jurisdictions such as Ontario that have enacted legislation to prevent harassment and violence in the workplace.

When an employer is assessing an employee's breach of this type of policy, it must be careful to balance all interests and examine the surrounding context. As this case demonstrates, even where an employee is found to have viewed inappropriate content at work, dismissal for just cause may be excessive.

Tips for Employers:

  • Ensure that clear computer and e-mail usage policies are in place and up-to-date, including consequences for unacceptable behaviour.
  • Ensure that employees are aware of the policies at the time of hire and that they are reminded of expectations throughout their employment.
  • Violation of a policy will often be insufficient to support a for-cause termination.
  • In most cases, employees should be give clear warnings and an opportunity to change their behaviour before the employer considers terminating for just cause.
  • Be up front with employees. If inappropriate computer or e-mail use is detected, speak with the employee and communicate expectations about appropriate use.
  • Consult an employment lawyer to assist with investigations or decisions about terminating employment.

Tips for Employees:

  • Keep personal e-mail use to a minimum while at work.
  • Try to use work-issued e-mail accounts for business purposes only.
  • Do not access e-mail or websites that could be perceived as objectionable, whether or not there is a computer or e-mail usage policy in place.
  • If confronted by your employer about inappropriate computer or e-mail use, be honest and forthright about your conduct.
  • Consult an employment lawyer if approached by the employer about alleged violations.
This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law