Alberta Court of Appeal addresses employees' expectation of privacy in the workplace
In June 2009, the Alberta Court of Appealhad the occasion to consider the expectation of privacy of employees with respect to their workplace computers and found 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.”
The case of Poliquin v. Devon Canada Corporation (2009 ABCA 216) examined the availability of a summary judgment motion in a wrongful dismissal case. Mr. Poliquin was terminated from his position as a senior supervisor at Devon Canada after 26 years of service for, among other things, using a workplace computer to access and exchange pornographic and racist emails.
In reversing the chamber judge’s decision and holding that the employee’s wrongful dismissal action ought to be summarily dismissed, the Court of Appeal considered the use of a workplace computer for the exchange of inappropriate material. Devon Canada’s Code of Conduct expressly prohibits employees from using its computer equipment and Internet access to send pornographic, obscene or inappropriate messages or attachments via email to anyone and specifically prohibits “circulating adult material”. On the Code of Conduct, the Court commented that: “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. The workplace is not an employee’s home; and employees have no reasonable expectation of privacy in their workplace computers. It therefore follows that while employers may permit employees limited personal use of workplace computers, the employer is entitled to restrict the terms and conditions on which that use may be permitted.” The Court concluded that: “In summary, an employee’s misuse of a workplace computer for pornographic or racist purposes negatively affects an employer’s professional, ethical and operational integrity. Employers are not required to tolerate the misuse of their computers and Internet access any more than they are required to put up with serious incidents of dishonesty by employees. When an employee steals money from an employer, the theft and resulting damage is at least confined to that employee. But where dissemination of pornographic or racist material using the employer’s computer or Internet access is concerned and especially where the employee’s e-mail address includes the employer’s identity, this is not necessarily so. In the information technology world today, e-mail can be disseminated to many inside and outside an organization with the click of a mouse. Accordingly, the harm done may well be far more serious and pervasive. This reality substantially increases the risks to employers flowing from the misuse of their equipment and Internet access for improper purposes. For these reasons, 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.”
