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More "immature and tasteless" than "harmful or harassing", employee's e-mails not grounds for dismissal

The prevalence of digital technology in today's workplace has engendered new forms of employee misconduct. Some of these are serious: downloading offensive material, or using e-mail to send harassing messages or to circulate false allegations injurious to the employer's interests (see "Office e-mail: no reasonable expectation of privacy" on our Publications page). However, where the misconduct is of a less serious nature, employers should be careful to respond in a manner proportionate to the offence.

This is the message coming out of Canadian Pacific Railway v. International Brotherhood of Electrical Workers, an Ontario arbitration decision issued on March 14, 2000. In that case, the grievor was an employee with nine years of service and a clean disciplinary record. With a number of other employees, he had managed to "break out" of the company's internal e-mail system and access the Internet to send and receive a number of messages that served as grounds for his termination.

CHEATING ON CORRESPONDENCE COURSE

One of the grievor's purposes in using the e-mail was to obtain answers to exams contained in an electronics correspondence course. The grievor was required to take the course as a condition of completing his apprenticeship. However, the grievor was not the only employee involved in using these improperly obtained answers in the exams: another employee had done so as well, and both he and the grievor were assessed 45 demerit points for the misconduct.

The arbitrator confessed to having "a degree of difficulty" with the employer's position that, while one employee's cheating merited 45 demerit points, the grievor's misconduct was deserving of termination, particularly given his lack of a disciplinary record and his years of service. The employer's response to the other employee's actions suggested that cheating on the correspondence course was not, by itself, sufficient grounds for termination. The issue, therefore, was whether the rest of the grievor's conduct did provide these grounds.

"INSIGNIFICANT CHIT CHAT"

The arbitrator found one of the grievor's e-mails to be in "extremely bad taste", in that it contained jokes ridiculing women and gays "in language liberally sprinkled with four letter words". However, for the most part, the e-mails consisted of "lighthearted communication about the grievor's taste in rock music and concerts, his plans for weekend outings at a nearby beach, his exploits at parties, and similar communications not altogether unusual for a 26 year old". While they did contain a derogatory comment about an unidentified employee, they could not be "characterized as disrespectful of authority". Summing up the nature of the e-mails, the arbitrator said:

"[T]hey are plainly more immature and tasteless than harmful or harassing in nature. ... [O]nly one of the e-mails, being the message to his girlfriend, contains tasteless jokes of the Howard Stern variety. The bulk of his communications, sent to employee friends, consists of largely insignificant chit chat which is neither scandalous nor particularly interesting."

NEITHER HARASSMENT NOR THEFT

Given his characterization of the nature of the e-mails, the arbitrator was of the view that the employer's reaction was excessive. He noted that, although the e-mails contained some "references to others in less than flattering terms", they were not "addressed to any individual who would have been the victim of harassment or abuse".

The arbitrator was similarly dismissive of the employer's effort to characterize the grievor's use of the e-mail system as "theft". Drawing a distinction between the conduct at issue and making unauthorized long distance calls, the arbitrator stated:

"There is no suggestion that there was additional expense incurred by the Company, or any quantifiable material loss suffered as a result of the grievor's actions. Absent any evidence which would, for example, show additional expense to the Company as might be established if an employee had improperly incurred substantial long distance charges for personal purposes, it is difficult to share the Company's characterization of the grievor's actions as meaningful theft for the purposes of discipline."

SOME DISCIPLINE WARRANTED

While not agreeing that discharge was the appropriate response to the grievor's actions, the arbitrator was careful to note that the grievor's conduct in using the e-mail system to send "personal messages of questionable taste" was "highly inappropriate" and deserving of some discipline. Internal communication systems, the arbitrator observed, are to be used in a "professional and responsible manner", and by violating the acceptable standards for using this system, the grievor had "thereby rendered himself liable to a serious degree of discipline".

Discharge, however, was excessive, particularly in view of the grievor's clear disciplinary record. Accordingly, the arbitrator reinstated the grievor without compensation or loss of seniority. The period of his absence from work was to be registered as a suspension for having falsified answers in the correspondence course and conduct unbecoming an employee in the misuse of the e-mail system.

In Our View

As with other forms of misconduct, employers should gauge their response to the seriousness of the offence. Where an employee has an otherwise clear record, it is unlikely that mere unauthorized use of an e-mail system for personal purposes will, by itself, justify discharge. Where the content of the messages and the identity of the addressee indicates an intention to harass or to act disloyally towards the employer, sterner measures may well be in order. Similarly, where the system is maliciously tampered with, or where the employer has incurred significant expense due to the employee's unauthorized use of the system, stronger discipline will be justifiable.

For further information, please contact Colleen Dunlop at (613) 563-7660, Extension 222 or J.D. Sharp at (613) 563-7660, Extension 233.