When the Supreme Court of Canada released its decision in R
v Cole, 2012 SCC 53, which found that an individual's
workplace computer was protected against unreasonable search and
seizure by police, many wondered how the decision would apply to
the relationship between employers and employees. A recent
labour arbitration decision has found that employees have a
reasonable expectation of privacy regarding personal emails, even
when the employer's policies state otherwise.
In SGEU v Unifor, Local 481 (2015), 255 LAC
(4th) 353 (Ponak), the Saskatchewan Government Employees
Union (the "SGEU"), acting in its capacity as an
employer, terminated one of its employees for being a known
associate of a motorcycle gang. SGEU became aware of the
employee's affiliation with the motorcycle gang after being
informed by a member of the Saskatchewan Ministry of Justice that
the employee had been involved in a bar fight wearing colours and
insignia affiliated with the gang. The Director of Human
Resources for the SGEU asked the employee if he was an associate of
the gang. The employee admitted he had previously been a
member but denied any recent involvement. The Director of
Human Resources chose to investigate further by reviewing emails
the employee had sent or received through the "SGEU.org"
domain. This included personal emails between the employee
and his wife. The search of the emails revealed that the
employee was affiliated with the gang, and he was dismissed.
The employee, through his bargaining agent, Unifor, grieved the
SGEU sought to admit the emails as evidence supporting its
decision to terminate the employee at the arbitration of the
grievance. Unifor objected on the basis that the employee had
a reasonable expectation of privacy in the emails, relying heavily
on the Cole decision. SGEU responded that the
employee had no expectation of privacy in the emails because the
SGEU's IT policy made it clear that all messages sent using the
SGEU's system were property of SGEU and employees should expect
that no communications were confidential or private. Further,
the IT policy stated that all IT resources were for work purposes
only. Incidental use was neither expressly permitted nor
Arbitrator Ponak found that the emails were inadmissible.
He agreed with the SGEU that the policy was clear that employees
should not expect that anything on the system would be confidential
or private, and said that the IT policy went a long way towards
reducing any expectation of privacy employees may have.
However, Arbitrator Ponak found that, because of the ubiquitousness
of email in society, it is impossible for some incidental, personal
use of work email not to occur. When finding that employees
maintain a reasonable expectation of privacy in those personal
emails on their employers system, Arbitrator Ponak cited with
approval comments in Cole that neither workplace policies
not ownership of the system are determinative of an employee's
expectation of privacy.
Because employees have a reasonable expectation of privacy in
emails on an employer's system, employers may only search those
emails if it is reasonable. Arbitrator Ponak followed
previous arbitral awards when he stated that, in order for the
search to be reasonable, it must be reasonable in the circumstances
to request a search, the search must be conducted in a reasonable
manner, and there must not have been reasonable alternatives
available to the employer.
In the context of the case before him, Arbitrator Ponak found
that SGEU had cause to conduct an investigation. However, the
search was unreasonable because SGEU did not consider less
intrusive alternatives first, such as requesting additional
information from the Ministry of Justice or contacting other
employees within SGEU who may have relevant information. If
these less intrusive alternatives proved unsatisfactory, Arbitrator
Ponak acknowledged that SGEU may have had grounds for searching the
Although the SGEU v Unifor decision is in the context
of an arbitration pursuant to a collective agreement, it has
important implications for all employers. Courts will apply
arbitration decisions when considering whether an employer had
cause to terminate an employee, regardless of whether that
employee's employment was governed by a collective
agreement. Any employer who wants to rely on personal emails
found on the employer's system to justify its decision to
terminate an employee for cause may have to first establish that
its search of the employee's personal emails was
reasonable. Although a strongly worded IT policy may reduce
an employee's expectation of privacy in emails sent using the
employer's email system, it appears that such a policy cannot
eliminate the expectation of privacy entirely.
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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