Recent Cricket Canada B.C. Supreme Court judgment shows why email votes and discipline notices can unravel in court for employers
Employers that default to email to settle tough questions about pay, discipline or governance may be walking straight into a legal trap, as a recent Cricket Canada case in B.C. Supreme Court made clear.
In West Coast Cricket Organization v Cricket Canada, the B.C. Supreme Court found that an attempt to suspend the Alberta Cricket Association by way of an email string between directors was procedurally invalid and oppressive.
The judge noted that no board meeting was called, no proper notice was given and directors were denied a chance for real discussion before voting rights were stripped from the Alberta branch of the organization.
For Craig Munroe, partner at Crawford Munroe Thomson in Vancouver and an experienced board director, the case is a “cautionary tale” for employers, that treating email threads as a standin for real governance can have real legal consequences.
When email HR decisions go too far
While the Cricket Canada case centred on a member suspension, the lesson applies to employers when boards or senior leaders are making decisions that affect employees, Munroe says – particularly around dismissals or suspensions of executives or key staff.
“If an employee is dismissed as part of a board decision, and the employee doesn't agree with that decision, and let's say that decision was made through this email process, the employee then rightly can challenge that decision, not only on the merits,” he says.
“They can challenge it that way, but they can also look at this and say, ‘In fact the decision itself didn't follow the process that was designed to ensure fairness.’”
In many cases, bylaws require unanimous support and a response from all parties – a safeguard Munroe says can be eroded when email votes became routine on contentious issues and directors stop engaging as actively as they would in a room.
“Where these types of resolutions, email resolutions, are used more than they should be, and in circumstances that probably would more appropriately warrant an actual board meeting,” he says.
“People become a bit too comfortable with the use of these email or alternative decision-making mechanisms, and start using them for actually more controversial items.”
HR decisions through email: fairness and consistency
Munroe admits that electronic communication is now the norm in many workplaces, and employees are used to receiving performance feedback, schedule changes and even some forms of discipline through electronic channels, particularly in remote and hybrid environments.
“These management decisions, and speaking to employees, whether through email or Teams or whatnot, probably is in the larger picture viewed less callously,” he says.
“But that's a subjective assessment, taking into account all the facts of the layoff or dismissal or other management decision, to see whether, taken together, the conduct crosses the line in terms of fairness and respect for the employee.”
The legal and HR issue for employers should be fairness and consistency rather than absolute rules; to support that consistency, Munroe recommends clear internal guidance and training of front-line managers.
“With so many different means of communication, that could be a helpful way to ensure that people think twice about the way in which certain decisions are being communicated,” he says.
“If you've got a larger organization, and the ordinary fashion that most managers use to communicate tough decisions is to call them in and have an in-person meeting, and one manager decides to do it by way of an email, it's going to beg the question, ‘Why wasn't I afforded the same degree of respect as these other employees?’”
