Can personal use outside of regular work hours be used as basis for discipline?
Question: Can an employer investigate an employee’s use of a company-issued laptop while on the employee’s own time outside of work hours? Can this use be the basis for discipline?
Answer: There are a number of legal issues that must be considered in determining whether an employer may investigate an employee’s personal use of a company-issued device.
Before investigating, an employer should consider what conduct it is entitled to investigate and how to carry out an investigation while respecting privacy rights.
Employees are often allowed to use company-owned devices for personal purposes. Employees may regularly use email, instant messaging, and social media on their company devices in a way that can blur the distinction between work and personal life.
In most cases, an employer can discipline or dismiss an employee for off-duty misconduct that affects the employer’s legitimate business interests. Such misconduct may include activities like inappropriate social media posts, and the bullying and harassment of colleagues.
Such conduct may warrant investigation and possibly discipline, but an employer’s capacity to investigate is not without limit.
An appropriate balance must be struck between the employer’s interest in managing its business and the employee’s right to privacy.
Provincial and federal privacy legislation sets out rights and obligations that protect individuals’ personal information in a variety of contexts, including the workplace.
While privacy laws are similar across Canada, employers should check the applicable legislation before investigating an employee’s use of company-issued technology.
Under privacy laws, employees are entitled to know how their personal information is being collected, used and disclosed by the employer, and for what purposes.
The employer must also consider the necessity and scope of the investigation. A recent Order of the Office of the Information & Privacy Commissioner of British Columbia, OrderF07-18: University of British Columbia, addressed both these issues.
It provided that the employer should first raise its concerns with the employee before resorting to an invasive investigation, and must use the least intrusive method available to obtain only information that is relevant to the suspected misconduct.
Obtaining excess personal information — in that case, personal banking information — was found to be a violation of the employee’s privacy.
A related consideration is the issue of admissibility of evidence in a discharge or discipline proceeding. Although there is some variation in how adjudicators in different forums approach this analysis, in general, assessing admissibility involves balancing the employer’s legitimate business needs against the employee’s privacy interests.
The leading arbitral authority, Doman Forest Products Ltd. v. International Doman Forest Products Ltd. v. I.W.A., Local 1-357, provides that the employer must demonstrate the investigation was necessary, conducted in a reasonable manner, and there were no alternative methods available to obtain the evidence sought.
If an employer wishes to use its investigatory material as a basis for discipline, this test must be met.
Colin G. M. Gibson is a partner at Harris & Company in Vancouver. He can be reached at (604) 891-2212 or firstname.lastname@example.org.