Increased usage and reliance on the Internet creates new
challenges for both employees and an employer's human resources
department. In certain circumstances, employees can be fired for
engaging in inappropriate Internet use at work. The case law
reveals certain trends which can be used as guidance when
navigating the issues surrounding Internet use in the
Termination for Cause
In particular, employees who send or receive inappropriate
(pornographic, racist, or otherwise obscene) e-mail while at work,
or using a work e-mail address, could lose their job. There are
various factors that the Court will consider in determining whether
an employer has cause to terminate an employee for inappropriate
e-mail use. Even if inappropriate e-mail is sent to, as opposed to
by, an employee, the employee can be terminated if the employee
forwards the messages to other employees and does nothing to stop
the incoming messages. In addition, the Courts have held that
supervisors are held to a heightened standard as they are expected
to enforce an employer's policies and exemplify appropriate
conduct in the workplace.
An employee engaging in inappropriate e-mail use will be at
particular risk of termination for cause if the employer has an
Internet usage policy in place which prohibits inappropriate use.
However, simply having a policy is not sufficient as the policy
must also be properly implemented and enforced. The expected
standard of conduct must be clearly outlined in the policy. It is
not sufficient for a policy to be posted on a company's
intranet (private computer network), without more. The employer
should gain an acknowledgment from all employees that they
understand and agree to the terms of the policy. The policy should
also be publicized in bulletin boards, distributed in manuals, or
clarified in follow-up memoranda.
An employer has an interest in preventing the exchange of
inappropriate e-mails in the workplace. When inappropriate e-mail
is sent using the company's e-mail address, the employer's
identity is associated with the e-mail, which could seriously harm
the employer's reputation. In Backman v Maritime Paper
Products Ltd., 2008 NBQB 219, the Court found that the sending
of inappropriate e-mail by an employee can also constitute sexual
harassment of any information technology (IT) employee or other
employee who is forced to view the inappropriate messages or
images. Statutory law prohibits sexual harassment in the workplace
and imposes liability on employers who fail to prevent such
Where instances of transgression are less serious or more
isolated, an employer should first proceed with a progressive
discipline approach in order to lay the foundation for termination
with cause. This approach involves providing increased levels of
warnings in response to an employee's repeated misconduct. In
order to be applied properly, progressive discipline must employ
clear warnings and the employee must be provided with a reasonable
opportunity to improve. Only once the employee fails to improve
despite multiple warnings can the employee be terminated for cause.
However, employers should take care when using progressive
discipline because if it is applied improperly, a subsequent
termination will likely be viewed as a wrongful dismissal.
If ever an employer is unsure about the exact sequence of
events, or if there are differing accounts among employees, the
employer has the option of conducting an outside investigation of
the incident. Such an investigation can provide useful
recommendations to the employer, all the while protecting the
employer from a human rights complaint by the employee or a
wrongful dismissal lawsuit.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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