When desktop computers became commonplace in the work environment, employees found they could use them to play solitaire. When companies began providing e-mail access to employees, offensive jokes began to circulate freely.
As desktop Internet access has become more common, there has been a dramatic rise in the number of people accessing pornographic websites during work hours. As more companies provide employees with portable devices such as a Blackberry, employees are using them to gamble online. And as more employees are given laptop computers, they have found they can use them to download copyrighted music and movies at home.
The reason any employer adopts or introduces new technology in the workplace is because it believes it will increase productivity and efficiency. But they also make it very easy for employees to engage in behaviour that is anything but productive.
The Internet and e-mail bring time-wasting and inappropriate activities straight to the employee’s desktop; they are far more accessible than other forms of improper behaviour and their abuse is more difficult to detect. Employees are very unlikely to physically leave work to go to the nearest casino and spend two or three hours gambling. However, it is far more likely they will click over to an online casino and do so.
Internet and e-mail abuse can be extremely costly to employers in terms of lost productivity. Employers can also be faced with liability for employees’ downloading of copyrighted material and their use of technology to harass others.
Furthermore, computer systems can be hindered or rendered useless by viruses that are unwittingly brought in when employees access things they should not.
Finally, companies can have reputations tarnished. A good example is an employee at Ontario Power Generation who used her corporate e-mail address to run her exotic dancer business.
The question facing employers is how to take advantage of existing technology while protecting themselves from abuse and potential liability. While some may suggest this is a new area of law, the reality is these are simply new, modern examples of age-old difficulties. Employers have always had to deal with the fact that some employees will waste excessive amounts of time, and others will engage in even more egregious behaviour. Internet and e-mail abuse do not really raise new issues of law; rather, they raise new factual scenarios which require the application of existing legal principles.
Like any inappropriate behaviour, not all Internet and e-mail abuse will provide sufficient grounds for termination. As most HR professionals know, just cause is a difficult standard to meet. In accordance with the existing law, judges will take a contextual approach to the matter and consider the history of the employee relationship, the seriousness of the behaviour in question and any other mitigating factors.
A review of the case law dealing with Internet and e-mail abuse suggests the following are among the factors that will be considered:
•the nature of the activity itself (e-mail, chatrooms and websites);
•the nature of the material being viewed, accessed or distributed;
•the nature of any associated behaviour (for example, defeating or circumventing blocking devices or software or using other employees’ equipment to avoid detection);
•interference with productivity;
•the nature of the workplace and the industry (including any safety considerations);
•the timing of the behaviour (during work hours, during breaks or after work hours);
•the existence or lack of a clear policy that has been communicated and understood by the employees;
•the existence of a permissive workplace culture in which the employer has previously turned a blind eye or otherwise condoned inappropriate behaviour;
•the nature of the employee’s work responsibilities (supervisory or non, position of trust);
•length of service;
•prior disciplinary record; and
•likelihood of recurrence.
Depending on the specific facts of each case, some or all of these factors may be relevant in determining the appropriateness of the discipline that was imposed. There may also be other factors that will be taken into account. This is no different than any other type of case where employers seek to impose discipline for improper behaviour.
Excessive personal use
Employees will use e-mail and the Internet for personal reasons — that’s a reality. In this sense, e-mail and the web are not unlike the telephone. The courts have acknowledged this and employers should as well. A zero-tolerance policy will not be well-received and is unlikely to be enforced. Excessive use, however, can be cause for discipline.
It is encouraging to note that some decision-makers have found excessive use can be subject to discipline even where there are no concerns expressed about the employee’s work performance. In
Mount Royal College and Mount Royal Support Staff Association
, the employee in question sent and received an extreme number of e-mails, most of them relating to her dog breeding business. Although her performance appraisals were positive, the arbitrator held that:
“An employer has a right to expect employees to focus their attention during working hours on activities that benefit the employer. It is reasonable for (an) employer to instruct employees to refrain from devoting substantial work time to personal matters. The college’s direction to the grievor was explicit — do not perform personal work on college time. Because the grievor disobeyed this order, I can only speculate on how much more productive and valuable her services would have been to the college had she devoted the time spent on personal matters to work on behalf of the college. Clearly, she had an obligation to the college in this regard and clearly this was an obligation that she knowingly did not fulfil. Thus, the fact that the grievor adequately performed work assigned to her cannot shield her from the consequences of deliberately engaging in personal work once assigned tasks were completed.”
Another example where excessive use was found to be just cause for termination is the case of
Syndicat Canadien des Communications, de l’energie et du papier, section local 522 c. CAE Electronic Itee (grief de Petruzzi)
. In that case it was found that during a four-and-a-half-month span, the grievor had spent 300 hours on the Internet, primarily accessing pornographic material. During that same period he had claimed 480 hours of overtime.
Pornography and other offensive sites
The form of employee Internet abuse that seems to get the most attention is pornography. Whether it is accessing pornographic websites or distributing pornographic materials, there is no shortage of examples of such misbehaviour.
Generally speaking, judges and arbitrators have considered the content of the material involved and have distinguished between less offensive material, such as “Sunshine” girls of
newspaper fame and more offensive material like child pornography. The more offensive, the more likely it will justify discipline and even immediate dismissal.
Some judges and arbitrators have explicitly rejected the argument that where the employees involved are consenting adults, the employer should not be concerned with the subject activity. According to the arbitrator in
Telus Mobility v. T.W.U.
“The employee is perfectly free to circulate such material with other consenting adults away from work, but I do not find that line of defence persuasive in the workplace, on company time and equipment and particularly in the face of an express warning.”
The “Sunshine girls” case,
Dupont Canada Inc. v. Communication, Energy and Paperworkers Union of Canada, Local 28-O
, provides a good example of the importance of a properly worded policy. In that case the employee was dismissed due to allegations he breached the policy dealing with pornography.
It was held that the materials in question were not pornographic, although they might be offensive to some. But it would have been open to the employer to adopt a policy that would deem the subject material inappropriate in the workplace. In the absence of such a provision, the employer could not discipline the employee for having such materials on his hard drive.
The importance of a clear policy
It is vital to have a clear policy with respect to Internet and e-mail abuse. It should be updated regularly to reflect changes in the workplace and in technology. Policies should address the use of equipment away from the employer’s premises, such as laptops and PDAs. The policy should be communicated to employees on a regular basis. Ideally, it should be endorsed or acknowledged by the employees.
It is also crucial to enforce the policy. A policy will not help an employer that has implicitly condoned inappropriate behaviour and allowed a permissive culture to exist. Employers should ensure the policy is disseminated and enforced, without exception.
Having said that, there are cases which stand for the proposition that some behaviour is so obviously inappropriate that even in the absence of a policy, discipline, including dismissal, is justifiable. However, an employer will be in a much stronger position if it can rely upon a clearly worded policy that has been distributed and enforced in the past.
Stuart Rudner practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at(416) 595-8672 or email@example.com.
|Tips for employers: Creating an effective policy|
•Use clear and unambiguous language.
•If you must use ambiguous words (such as “reasonable” or “inappropriate”), define them as clearly as possible.
•Specify whether personal use of online resources can be engaged in and to what extent.
•State whether employees can use the resources for personal reasons after hours, or during work hours.
•Specify the types of activity that are strictly prohibited (for example, no pornography, hate sites, chat rooms, instant messaging, distribution of e-mails containing large attachments, no downloading copyrighted material).
•Make it clear that the computers, systems and other technology, including hardware and software, are the property of the employer.
•Spell out enforcement mechanisms — if e-mail and online activity is to be monitored, make this clear so employees are aware their e-mail is not private and their Internet and e-mail usage is being monitored.
•Emphasize that employees have a responsibility to discourage friends and associates from sending them inappropriate e-mail.
•Communicate the policy — make sure employees are aware of the policy and any changes to it.
•Update the policy where necessary to reflect new potential forms of abuse that are not addressed adequately in the policy (such as instant messaging or laptop computers).
•Ensure supervisors and managers are aware of the policy and how to monitor for breaches.
•Be clear about the consequences of breaching the policy — warn employees they may be disciplined up to and including termination.
•Respond immediately and thoroughly to abuses.