Employee shouldn’t have been fired for letting terminated supervisor use computer: Court

Supervisor had been fired two days earlier and wanted to cancel electronic fax account

An Alberta company didn’t have just cause to fire an employee who allowed a fired co-worker use her computer after hours, the Alberta Court of Queen’s Bench has ruled.

Lioubov Perewernycky, 41, was hired in 1994 as a temporary employee by National-Oilwell Canada Ltd., a manufacturer and distributor of oil field service and supplies based in Edmonton. She was hired as a permanent employee in 1995 and in 1997 was promoted from a clerk to the sales group.

In January 2005, Perewernycky was pregnant and experiencing back pain. She was also feeling stressed since the supervisor of the sales group had been fired and another member was on vacation, resulting in a larger workload. Things became bad enough that Perewernycky went on short-term disability leave beginning March 18, 2005, scheduled to last until her maternity leave began in June.

On March 19, two days after the supervisor was fired and the day after she began her leave, she agreed to let him come with her to the office while she picked up some personal belongings. The former supervisor wanted to use her computer to cancel an electronic fax account he had used for work but could no longer access because he couldn’t use company computers. Perewernycky allowed him to use her computer to send the cancellation e-mail. She was already logged in so the former employee was able to send the e-mail while she left to use the washroom. Another employee was present, though he wasn’t specifically monitoring the former employee.

Perewernycky packed up her personal belongings in a box since she was going on short-term disability. Her former supervisor carried the box as well as an empty box for her as they left the office. Another employee spotted them leaving with the boxes and reported them to National-Oilwell management.

After police were brought in to investigate, it was explained the boxes contained Perewernycky’s personal effects and the reason they were in the office. A company investigation revealed no computer files had been tampered with and no suspicious e-mails sent. However, on March 31, 2005, Perewernycky received a letter from National-Oilwell stating its trust in her was “irreparably damaged” because she had allowed a dismissed employee access to its offices and computer systems.

The court agreed information on the computer exposed to the former employee was confidential but found he didn’t access anything which was an “advantage to him or injurious to the company,” nor did she actually give him any passwords. Until his termination two days earlier, he had access to the same information. The court also found the purpose for allowing him in the office was reasonable and Perewernycky had an honest belief he wanted to cancel the electronic fax account.

“(Perewernycky’s) actions constituted an error in judgement but were not sufficient to terminate a long-term employee,” the court said. “(Her) actions did not go to the core of the employment relationship.”

The court also found National-Oilwell didn’t give Perewernycky a chance to explain her version of events and work out the situation. In fact, the company had decided to fire her before the investigations of the company and the police were closed. This amounted to bad faith on the part of National Oilwell and entitled Perewernycky to two months’ extra notice on top of the appropriate notice of 10 months, for total damages of $48,000.

For more information see:

Perewernycky v. National-Oilwell Canada Ltd., 2007 CarswellAlta 342 (Alta. Q.B.).

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