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 workplace.
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 conduct.
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.