February 5, 2003 by Israel Foulon LLP
Question: We have a company policy which states we can monitor employee e-mails. But we do not do so unless we feel it is justified. If we find an e-mail that suggests an employee may be a physical threat to a co-worker, can this justify a termination for just cause?
Answer: Your question raises two distinct issues. What are an employer’s rights in respect of monitoring employee e-mail? And what duties and obligations do employers have in ensuring the safety of their employees?
Recent decisions of arbitrators in Canada make it clear an employer is entitled to monitor employee e-mail provided a clear and communicated e-mail policy is in place. The right to monitor employee e-mail must be balanced against an employee’s right to privacy. If an employee is specifically and clearly notified she has no right to privacy in respect of e-mails sent using company computers, then an employee’s argument that she expected her e-mail communication to be private would be unsupportable.
An e-mail use policy should specifically detail the permitted and non-permitted uses of email. For example is e-mail to be used for business purposes only or are personal e-mails permitted?
If personal e-mails are permitted, then the policy should still indicate what restrictions exist in respect of content. A policy should specifically indicate e-mails containing offensive, discriminatory, pornographic, threatening content and so on are prohibited.
The employees should be notified in the policy that the content of e-mail is subject to monitoring and e-mail containing prohibited content will justify discipline, up to and including termination for just cause. As with all policies, in order to be effective they must be clearly communicated to employees and properly and routinely enforced.
Therefore if a policy as outlined above is in place, but an employer regularly permits known violations of the policy to go unpunished, the employer will have a difficult time trying to rely on the policy to justify a termination for just cause.
The second part of your question is more problematic. Clearly a physical threat of violence by one employee to another can justify a termination for just cause. As with all just cause terminations, however, a lot depends on the circumstances. Of greater importance is the employer’s obligation to ensure its employees are safe.
In the situation you outline above, the employer would have to conduct an assessment of whether or not there was a significant safety risk and plan its action accordingly. Depending on the extent of the safety concern, it may be appropriate to have the police involved.
The threatened employee may be in need of notification and protection prior to approaching the employee who made the threat.
Typically when alleging criminal conduct against an employee, the allegations should be put to the employee and the employee should be given a proper opportunity to explain and respond prior to terminating the employee for just cause. Nevertheless, depending on the level of safety risk, this approach may not be appropriate in all circumstances.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today