Employee Fired for Disseminating Inappropriate E-mail at Work

By Alix Herber

While many employees are allowed to access and use the Internet and e-mail on company computers for “limited” personal use, it’s not uncommon for them to misuse this privilege. In Poliquin v. Devon Canada Corporation, the Alberta Court of Appeal was asked whether an employee could be fired for cause because he used his employer’s computer and Internet access to view and disseminate pornographic and racist materials in violation of the employer’s code of conduct. According to the Alberta Court of Appeal, the answer was yes.

Facts
Poliquin worked for Devon Canada for 26 years supervising between 20 and 25 employees. When he was fired for using the company’s computer to view and transmit pornographic and racist materials, he sued Devon Canada.

The 881 pages of electronic material that were at issue had been accessed by Poliquin from the Internet or had been e-mailed to him by others. They included “graphic photos” of nudity and “various sexual acts” and “racist material” that was “clearly derogatory of persons of other racial and ethnic backgrounds.” On some occasions, Poliquin forwarded such e-mails to some of Devon’s employees, suppliers, and contractors. Poliquin had been previously warned in writing that he was not to access pornographic or racist material from his company computer.

Devon Canada’s code of conduct allowed employees to use its computer for “limited” personal use but expressly prohibited sending pornographic, obscene, inappropriate, or other objectionable messages or attachments via e-mail to anyone. Poliquin was found to have read, understood, and accepted the terms of the code of conduct.

Trial decision
The trial judge decided that although Poliquin breached of the code of conduct, dismissal for cause was not appropriate.

Court of Appeal decision
Luckily for Canadian employers, the Alberta Court of Appeal reversed the trial judge’s decision.

In deciding that Devon Canada had cause to fire Poliquin, the Court of Appeal relied on the following:

• Poliquin violated the code of conduct. In that respect, the Court of Appeal said the following:
  

  Employers have the right to set the ethical, professional and operational standards for their workplaces. Doing so not only falls within an employer’s management rights, it also constitutes an integral component of corporate good governance.

• Poliquin’s viewing and exchanging pornographic and racist material was egregious and offensive to his obligation of honesty and good faith;
• the frequency of the e-mails;
• Poliquin failed to stop the receipt of e-mails;
• Poliquin’s role as a senior manager; and
• the workplace is not an employee’s home –  “employees have no reasonable expectation of privacy in their workplace computers.”

Conclusion
This decision suggests that Canadian employers don’t have to tolerate the misuse of their computers and Internet access. With a click of the mouse, the dissemination of harmful information can have a pervasive negative impact on the workplace. For these reasons, an employer is entitled not only to prohibit use of its computers for inappropriate purposes but also to monitor an employee’s use of the employer’s computer systems to ensure compliance (subject to any applicable privacy laws that say otherwise).

To that end, Canadian employers may wish to:

• have a well-drafted computer-use policy;
• regularly update such policies and apply them consistently;
• ensure employees receive copies of the policies and acknowledge in writing their acceptance and understanding of the policies; and
• set out clear terms and conditions regarding the limited use of workplace computers for personal use.

Contact the author, Alix Herber

Audio Conference: Operating in Canada: New Dos and Don’ts for Employers – presented by experienced Canadian employment law attorneys, Brian Smeenk, Derek Knoechel, and Louise Béchamp, Fasken Martineau DuMoulin LLP

• 

  Alix Herber
  Working closely with her clients, Alix Herber enjoys providing strategic and practical advice to employers on a wide array of workplace issues including, labour arbitrations, performance and discipline management, employee terminations, wrongful dismissal litigation, employment standards, and human rights. Alix spent several years as In-House Counsel of one of North America's largest food processing and distribution companies and as Senior Director of one of its major operating divisions. In those roles, she focused on operational labour relations and the administration of approximately 50 collective agreements, leading negotiations in bargaining a number of them.