You’ve got e-mail problems

Know when to discipline and when to fire for cause

Internet abuse is one of the biggest headaches employers are facing. Whether it’s the sending and receiving of inappropriate messages, surfing for pornographic Web sites or excessive use of personal e-mail, employers are spending a lot of time and effort disciplining employees and, in many cases, terminating employment for cause.

In most cases, courts will find disciplining an employee for Internet abuse to be a reasonable action. But when it comes to terminating an employee for cause, the employer must proceed with caution because there are varying degrees of misconduct. Certain offences, like excessive use of personal e-mail, should not be lumped together with serious or offensive ones such as as downloading and sending racist or pornographic material.

The natures of the offence, the work environment, the employee’s length of service, whether the employee was honest with his employer and the jeopardy to the employer are some of the factors courts and arbitrators are considering.

In the recent case of Manchulenko v. Hunter Line Checking Ltd., the British Columbia Supreme Court addressed the issue of whether Manchulenko had abused his privilege of limited personal use of the Internet at work. It was alleged he violated company policy when he used company computers to receive and send pornographic materials, jokes and other inappropriate material.

Before firing Manchulenko, the company had sent warnings to all its employees. In 2000, employees were told use of the Internet and computer systems for non-business related purposes constituted an abuse of the system and would not be tolerated. In 2001, another memorandum was sent to all staff explaining e-mail would be monitored randomly and employees held accountable for anything not related to work done during regular office hours.

Specific warnings, however, were never provided to Manchulenko.

The court found the only person he forwarded the offensive e-mail to was his brother. Therefore, while finding the employee was foolish and careless regarding his use of the company’s resources, the court held the evidence failed to indicate there was any excessive amount of material involved, a significant amount of time wasted or any problem to the company’s system because of his actions. It also found there was no evidence of any distribution of this material to co-workers or customers.

In Consumers Gas v. Communications Energy & Paperworkers Union, a woman was discharged for the inappropriate use of her computer because she was receiving and distributing inappropriate material, which the company had characterized as pornographic. The arbitrator found the permissive culture which had developed through the participation of management in the transmission of jokes of a sexual nature, the lack of monitoring and the lack of direction all contributed to his finding there was no cause to discharge the woman.

The length of service of the employee is another important factor. In West Coast Energy Inc. v. C.E.P. Local 686B (Bourdon), a male employee had sent inappropriate material anonymously to a female staff member on four occasions.

The employee used the employer’s computer to transmit e-mails. The e-mails were not sent through the employer’s e-mail provider but through a personal account that could be accessed through the Internet. The employee lied about his involvement both to West Coast Energy and to his union representative.

West Coast Energy said the dismissal was justifiable given the repeated nature of the offence, the fact the victim was frightened for her safety and the employee’s refusal to admit to his actions. But the arbitrator found that because he had been with the company for 24 years, with no prior record of discipline, this was not an appropriate case for a discharge.

On the other side of the coin it seems apparent courts and arbitrators are willing to find cause where dishonesty strikes at the root of the misconduct. In DiVito v. MacDonald Dettwiler and Associates Limited, two employees were dismissed after circulating e-mail containing inappropriate comments about an overweight woman that was distributed on two occasions. Both employees lied to their employer and denied their involvement during the investigation.

The British Columbia Supreme Court held the distribution of the e-mail alone was insufficient, but the dishonesty displayed by both was sufficient for cause.

In Krain v. Toronto Dominion Bank, an employee was terminated for downloading and using unlicensed software applications, games and movies. He also downloaded, stored and distributed hard core pornographic information. All of this was done while at work.

The bank had a policy in place, making it clear that viewing, downloading, possessing or distributing inappropriate or offensive materials from the Internet was subject to disciplinary action up to and including termination for cause. The policy prohibited downloading games, or other entertainment software and copying of copyrighted materials. The arbitrator found that while the employee’s actions during business hours were inappropriate and deserving of discipline, they did not necessarily lead to cause for termination.

The arbitrator said the bank should have followed its own policy and imposed a progressive disciplinary scheme on the employee rather than terminate him for cause. But because the employee had exposed the bank to liability for copyright infringement by downloading and using unlicensed software, the balance was tipped in favour of a finding of cause.

Setting up a policy

Following a clear, well-defined Internet policy is essential for employers. It is critical to put the proper policies in place in order to regulate use of computer equipment and monitor Internet usage. In developing an e-mail policy, focus attention on the purposes for which e-mail systems are used, the nature of the information exchanged and the business expectations for the employee using e-mail.

For more information about implementing an online policy, including a sample policy, visit www.hrreporter.com, click on search and enter article #2150.

For more information see:

Manchulenko v. Hunter Line Checking Ltd,.[2002] B.C.J. No. 1472

Consumers Gas v. Communications Energy & Paperworkers Union [1999], O.L.A.A. No. 649

West Coast Energy Inc. v. C.E.P. Local 686B (Bourdon) (Re), (1999) 84 O.A.C. (4th) 185

DiVito v. MacDonald Dettwiler and Associates Limited, [1986] B.C.J. No. 1346 (B.C.S.C.)

Krain v. Toronto Dominion Bank, [2002] C.L.A.V. No. 406

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 264-9599 or [email protected]. Her column appears regularly in Canadian HR Reporter’s Guide series. Look for the Guide to a Healty Workplace in the April 7 issue.

To read the full story, login below.

Not a subscriber?

Start your subscription today!