Two recent cases illustrate the limits of employee rights in connection with their use of technology related to the workplace. Although these are extreme examples, they reinforce some basic rules about employee “Acceptable Use” policies, and employee use of technology:

• Employee Blog: In the case of Alberta Union of Provincial Employees v. Alberta QB 2009 ABQB 208 (Nielsen, J.) the court dealt with a union employee who was dismissed on the basis of blog-postings which were critical and contemptous of fellow employees and management.  While the case was sent back to the labour arbitrator because of procedural irregularities (the employer failed to follow the collective agreement in the course of disciplining the employee), it is important to note that the decision to dismiss the employee was not overturned by the court. In short, there are circumstances where an employee can be dismissed for cause due to blog-postings that expose fellow workers to contempt and riducule.
• Reasonable Expectation of Privacy: In the case of R. v. Cole, 2009 CanLII 20699 (ON S.C.), an Ontario high-school teacher was charged with possession of child-pornography, on the basis of images found in a hidden file on a laptop assigned to him, but owned by his employer.  He complained that he had a right to privacy over the contents of the laptop, and therefore the search of his hard-drive was an unreasonable invasion of privacy. The court rejected this argument, saying that by agreeing to the School Board’s “Acceptable Use Agreement“, the accused clearly knew that the data and information on the laptop were not private.  The terms of the Acceptable Use policy were important in establishing the limits of the employee’s right to privacy.

Lessons for business?

1. Employee privacy issues have to be handled carefully and with sound legal advice in accordance with workplace policies;
2. Dismissing an employee based on the contents of a public blog, Facebook page or other online posting is not a trivial matter and must be undertaken after careful consideration of the employer’s procedures and the nature of the online comments;
3. If you don’t have an acceptable use policy, then you should consider having one prepared for your employees. 

Related reading: Employer Access to Employee Gripe Site

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