The New Brunswick Court of Appeal has dismissed an appeal brought by an employer regarding damages that were awarded to two former employees who were terminated for cause after receiving unsolicited emails containing pornographic images.
The employees received a serious of pornographic images on their work emails from a common friend over a two-month period. Both employees viewed the images on the employer’s workplace computers and either immediately deleted or transferred them to their personal email addresses. The employees did not share any of the pornographic images with any of their co-workers, but the employer believed such conduct was in violation of the workplace Internet acceptable use policy and terminated the employees for cause.
The Court of Appeal reviewed the employer’s workplace Internet acceptable use policy and found it did not clearly address the receipt of unsolicited pornographic materials at the workplace and therefore did not apply to the employees’ conduct. Furthermore, the court found the employees were not warned that their conduct would lead to their respective terminations. As a result, the appeal court upheld the lower court’s decision that the employees’ terminations constituted a disproportionately severe penalty in the circumstances, and were therefore unjustified.
Impact of decision on employers
The appeal court’s decision demonstrates that employers need to be mindful of the wording used in their workplace policies, as any portions that are unclear or ambiguous will be construed against the employer. Therefore, employers must ensure their workplace policies are drafted in a manner that will clearly address all acts the employer wishes to prohibit in the workplace.
Impact of decision on employees
Employees should be aware employers are required to meet a high threshold when attempting to demonstrate they were justified in terminating an employee for cause. As the above case demonstrates, any ambiguity contained within a workplace policy that is being relied upon as justification for a termination for cause may prevent an employer from being able to succeed in establishing its position.
For more information see:
• Asurion Canada Inc. v. Brown, 2013 CarswellNB 72 (N.B. C.A.).
Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in Markham, Ont.. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article.