A well-drafted computer-use policy can provide evidence to
uphold a termination for cause and can protect an employer from
harassment claims, as recent case law illustrates.
The scene is well-known in the workplace: an employee receives
an e-mail joke or photo from a colleague down the hall, has a
giggle, and forwards the message to other colleagues, friends at
other organizations, and relatives who might appreciate the joke.
In minutes, a complete cyber network is created, and it has passed
along a message.
Sometimes the message is innocuous, e.g., it involves cute
images or funny expressions. Other times, it involves racist,
sexist or pornographic jokes or images.
In most organizations where employees use computers for their
jobs, employers draft and implement computer-use policies that
limit personal — and prohibit inappropriate —
computer use. The Alberta Court of Appeal decision in Poliquin
v. Devon Canada Corporation underscores the importance of
employers adopting, and enforcing, these policies.
The Devon Case
Mr. Poliquin was a long-time employee of Devon and had
supervisory responsibilities over other employees.
Devon had a Code of Conduct that included a provision
on appropriate computer use. The company permitted employees to use
its computers for limited personal use, but specified that the
system "should not be used for sending pornographic, obscene,
inappropriate or other objectionable messages or attachments via
e-mail." Poliquin acknowledged that he had read, understood
and accepted the terms in the Code of Conduct.
Poliquin violated the computer-use policy on several occasions
by forwarding pornographic, derogatory and/or racist e-mails. Apart
from these incidents, he was considered a valued employee and had
received positive performance appraisals and exemplary performance
Nonetheless, Devon dismissed him for cause, and the Court of
Appeal upheld this decision.
Although the case technically revolves around the issue of
whether summary judgment was appropriate in the circumstances, the
court makes some notable observations on the limits of
employees' privacy in the workplace and on employers' right
to monitor computer usage, including that "the workplace is
not an employee's home; employees have no reasonable
expectation of privacy in their workplace computers."
The court also specifically acknowledges the employer's
right to set ethical, professional and operations standards for
their workplace. It indicates that the ramifications for failure to
enforce a reasonable computer-use policy may be extreme and may
even go beyond the walls of the organization. An employee's
misuse of the employer's computer system to access, receive and
disseminate inappropriate materials could:
compromise the employer's reputation in the community, as
e-mail messages forwarded from work computers often carry the
organization's signature and may be viewed as sent on behalf of
adversely impact the work environment;
diminish the productivity of the employee in question;
expose the employer to lawsuits for failing to protect its
employees from harassment or discrimination; and
introduce worms and viruses "through inappropriate
accessing of pornographic or racist websites, or through receiving
tainted material downloaded from these websites."
In light of these significant risks, the court concluded that
"an employer is entitled not only to prohibit use of its
equipment and systems for pornographic or racist purposes, but also
to monitor an employee's use of the employer's equipment
and resources to ensure compliance."
McCarthy Tétrault Notes:
Devon is a goldmine of valuable hints and quotes for
Alberta employers. It clearly supports the employer's right to
manage the workplace and enforce reasonable policies. Employers
Implement a clear-cut and comprehensive computer-use policy
that sets out permitted and proscribed uses of workplace computer
systems. If an employer does not want an employee to have a
reasonable expectation of privacy over any data found on a computer
or the employer's network, then this should be clearly stated
in the policy. This policy, like all policies, should be carefully
drafted and subsequently reviewed to ensure its continued
applicability and validity.
Ensure that all employees receive copies of the policy and
acknowledge their receipt and understanding of the policy.
Send out periodic reminders of the terms and conditions of the
policy; these may include requiring employees to click on an
"acceptance box" before being granted computer
Conduct regular monitoring to ensure compliance with the
Hold all employees, including supervisors, to the same
standards and expect them to adhere to the policy.
Not take violations of the policy lightly.
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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