Author: Daniel A. Lublin
No right to privacy when using your employer’s computer
Employees often get what they deserve. When they work hard, they get a bonus. When their service is long and meritorious, they may get a good severance package or pension. When they knowingly break their employer’s rules, however, they often are fired for cause and get nothing at all. This is the tale of two employees who misused their computers at work and the consequences they reluctantly faced.
Claude Poliquin worked for Devon Canada Corporation for 26 years. When he was fired for allegedly accepting services from company suppliers and using the company’s computer to view and transmit pornographic materials, he wasn’t about to go quietly.
An Alberta appellate court recently reviewed the case against Poliquin, which included unchallenged evidence that he had read and understood Devon’s code of conduct and that he had read and forwarded a number of emails that were described as pornographic and even racist. Despite Poliquin’s position as a supervisor and previous exemplary performance reviews, the Court was not persuaded that he had any chance of winning his case and rejected his arguments following a preliminary motion. According to the court, the workplace is “not an employee’s home” and Poliquin had no reasonable expectation of privacy in using his employer’s computer.
Similarly, 14-year company veteran Gregory Backman had run into problems with Internet pornography before when he was caught viewing inappropriate websites but was not disciplined. However, when a company audit revealed that he had been surfing pornographic web sites for more than 10 hours in one month, he was fired.
Backman challenged his dismissal, claiming that since he had previously been caught misusing the Internet at work, without discipline, his employer, had effectively condoned his online habits and could not now rely on it as the reason for his firing.
Recently, however, a New Brunswick appellate court also rejected Backman’s arguments, siding with his employer and upholding his termination for cause. According to the court, Backman’s repeated viewing of pornography at work constituted a pattern of behaviour that “destroyed” his employer’s trust in him as a supervisor.
These two cases ought to give employees pause. Canadian courts have little tolerance for employees whose computer habits expose their companies to liabilities. This is because in every province there is legislation that is interpreted as requiring employers to provide a harassment-free workplace. As well, given the potential risks to employers, it is clear that they can monitor an employee’s use of computers, BlackBerrys or any other equipment that uses its servers – and they often can do so without notice.