Office e-mail: no reasonable expectation of privacy

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In a recent decision, a British Columbia arbitrator has affirmed what many of those in today’s work place already know: e-mail messages are not confidential. The case, CUPE v. Camosun College (November 15, 1999) dealt with the grievance of a lab technician terminated for having made a series of unwarranted allegations against other employees and the administration. The allegations were contained in a lengthy e-mail distributed to some 100 employees subscribing to a union “chat group” set up on the employer’s computer network.

In the e-mail, the grievor alleged that he was the victim of “management supported harassment” and that there was gross incompetence and favouritism in his department. Most significantly, he claimed that three instructors were involved in diverting College resources amounting to “tens of thousands of dollars” to their private business, causing the “corruption of a publicly funded institution”.

The message soon found its way to the members of the faculty criticized by the grievor, and he was placed on paid suspension pending an independent investigation of his allegations. Subsequently, in the first dismissal in the College’s history, the grievor was terminated.

RIGHT TO PRIVACY NOT INVOLVED

At arbitration, the College argued that the message breached the grievor’s duty of fidelity to the employer, and constituted insubordination. The union countered that the contents of the e-mail were not grounds for dismissal, as the message was both confidential and privileged.

Turning first to the issue of confidentiality, the arbitrator began by noting that the chat group was part of the College’s system, and that this should alert users that e-mail messages were subject to monitoring by the College. Further, any recipient with access to a printer could print and circulate hard copies. More important, however, are the other features of e-mail, along with the grievor’s awareness of them:

“[A]ny subscriber could simply forward it to persons external to the list. Every subscriber would have the capacity to communicate a particular message to every one of the subscriber’s e-mail correspondents, and they in turn to their correspondents. The potential for dissemination is limited only by the internet. …

The nature of the medium therefore does not support a claim for confidentiality. Rather, it prevents any such claim. Further, the Union and the grievor appreciated the relevant characteristics of electronic mail.”

The arbitrator went on to cite case law to the effect that the expectation of confidentiality that attaches to letter mail could not be applied to e-mail. The right to privacy was therefore not involved.

NO PRIVILEGE

The union also argued that the message was analogous to oral statements made by members at a union meeting, and that it should therefore be considered privileged. It did not provide any authority for this proposition. The arbitrator nonetheless rejected the argument, stating that he did not equate e-mail messages with oral statements at a meeting. Unlike statements at a meeting, e-mail messages can be easily copied and forwarded to be read by others in their original form. Even if such oral statements were privileged, there is no reason to extend this protection to e-mail messages on the employer’s computer system.

Nor was the grievor in a position to claim the privilege accorded statements made by union officials in the course of discharging their responsibilities, as he was acting in his personal capacity.

DUTY OF FIDELITY BREACHED

Having determined that the message could be used to provide grounds for dismissal, the arbitrator turned to consider the truthfulness of its contents. He concluded that, with respect to each of his allegations, the grievor’s statements were knowingly or recklessly false.

The issue now was to determine whether the grievor had breached the duty of fidelity or, in other words, his obligation to not deliberately do something harmful to the employer’s interests. Many cases of alleged breach involve employees making public criticisms of the employer, and the arbitrator’s task is to balance the interest of employees in free debate against the employer’s interest in maintaining an efficient operation.

The arbitrator noted that the duty of fidelity does not require that an employee ignore wrongdoing in an enterprise. However, before “going public”, the employee is obliged to investigate and verify the concerns as far as possible, and to take every opportunity to correct the problem within the organization. In this case, it was clear that the grievor’s allegations were false, and that he had made no effort to substantiate them before sending his message. Therefore, his actions breached his duty of loyalty to the College.

In Our View

In the July 1998 issue of FOCUS, we discussed the usefulness of implementing a policy on the use of your organization’s computerized resources (see “Emerging issues in the digital workplace” on our Publications page). This case demonstrates that one component of a policy could be a reminder to employees that information that is sent via e-mail cannot be considered confidential, given the unlimited potential for dissemination when using this technology.

It is possible that a different result would have obtained had the e-mail message been sent to one person. Although much of the reasoning concerns the nature of e-mail technology itself, the arbitrator refers, at one point, to an individually addressed e-mail as affording “confidentiality or, at least, greater confidentiality”. It is possible, however, that the number of correspondents would have been seen as relevant not to the issue of confidentiality, but to whether the grievor had breached the duty of fidelity. (See also “More “immature and tasteless” than “harmful or harassing”, employee’s e-mails not grounds for dismissal” on our Publications page.)

For further information, please contact Jennifer Birrell at (613) 563-7660, Extension 261.