Can an employee be fired for misusing company instant messaging system?
Question: One of our company's supervisors accused an employee of using the company’s instant messaging program for personal use. Should we investigate? If true, does this conduct warrant dismissal? Do we need to give a formal letter outlining the reasons for dismissal?
Answer: Often, employees are surprised to find out their computer use has been monitored, their e-mails read and their activities are being treated as disciplinary matters. While it might seem obvious to an employer that computer resources, software and Internet connections are for business purposes only, it is clearly not to many employees. Younger employees particularly may simply not “get” that texting, e-mailing and instant messaging (IM) their friends will be frowned upon in the workplace.
Accordingly, any employer intent on disciplining employees for the relatively benign practice of instant messaging — without an added component such as harassment, intimidation or damage to the employer’s reputation that might cause a breakdown in the employment relationship — should first make it clear to its employees that such a practice will not be condoned during working hours.
In the absence of a policy forbidding such activities and notice of the discipline or dismissal for its breach, any attempt to dismiss an employee for a first offence would be doomed to failure.
Even if the employee had been warned about IM use and its consequences, it is doubtful it would be considered grounds for dismissal unless it was substantial and resulted in loss of productivity. At a minimum, a specific written warning would likely be required and continued misuse to take place before dismissal would be an option.
It is wise for an employer to ascertain the facts from both sides prior to treating any employee conduct as a disciplinary incident. Failure to do so may result in an unpleasant and expensive surprise if facts of which the employer is unaware come out later. In some cases, a completely unwarranted dismissal may expose the employer to greater damages if the employer has failed to take any steps to ascertain the circumstances relied upon for the dismissal and if the employee has suffered loss as a result of the employer’s actions. The Supreme Court of Canada has held that bad faith in the manner of dismissal justifies an increase in the notice period for wrongfully dismissed employees.
There is no general requirement at common law for an employer to provide formal written reasons for dismissal. However, such a requirement may be imposed in a collective agreement, statute or employment contract. For example, the New Brunswick Employment Standards Act demands employers dismissing non-unionized employees must “do so in writing, setting out the reasons for such action.”
Notwithstanding the absence of any contractual or statutory stipulation to provide reasons for dismissal, the law imposes on employers the duty to act fairly in the manner of dismissal. This could require employers to provide reasons or to refrain from misleading an employee about the reasons for her dismissal. If an employer provides reasons for dismissal and discovers additional misconduct after the fact, it may be entitled to rely on that additional misconduct in support of the dismissal. This depends on whether that misconduct was known or could not reasonably have been discovered by an adequate investigation at the time of the dismissal.
Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.
Answer: Often, employees are surprised to find out their computer use has been monitored, their e-mails read and their activities are being treated as disciplinary matters. While it might seem obvious to an employer that computer resources, software and Internet connections are for business purposes only, it is clearly not to many employees. Younger employees particularly may simply not “get” that texting, e-mailing and instant messaging (IM) their friends will be frowned upon in the workplace.
Accordingly, any employer intent on disciplining employees for the relatively benign practice of instant messaging — without an added component such as harassment, intimidation or damage to the employer’s reputation that might cause a breakdown in the employment relationship — should first make it clear to its employees that such a practice will not be condoned during working hours.
In the absence of a policy forbidding such activities and notice of the discipline or dismissal for its breach, any attempt to dismiss an employee for a first offence would be doomed to failure.
Even if the employee had been warned about IM use and its consequences, it is doubtful it would be considered grounds for dismissal unless it was substantial and resulted in loss of productivity. At a minimum, a specific written warning would likely be required and continued misuse to take place before dismissal would be an option.
It is wise for an employer to ascertain the facts from both sides prior to treating any employee conduct as a disciplinary incident. Failure to do so may result in an unpleasant and expensive surprise if facts of which the employer is unaware come out later. In some cases, a completely unwarranted dismissal may expose the employer to greater damages if the employer has failed to take any steps to ascertain the circumstances relied upon for the dismissal and if the employee has suffered loss as a result of the employer’s actions. The Supreme Court of Canada has held that bad faith in the manner of dismissal justifies an increase in the notice period for wrongfully dismissed employees.
There is no general requirement at common law for an employer to provide formal written reasons for dismissal. However, such a requirement may be imposed in a collective agreement, statute or employment contract. For example, the New Brunswick Employment Standards Act demands employers dismissing non-unionized employees must “do so in writing, setting out the reasons for such action.”
Notwithstanding the absence of any contractual or statutory stipulation to provide reasons for dismissal, the law imposes on employers the duty to act fairly in the manner of dismissal. This could require employers to provide reasons or to refrain from misleading an employee about the reasons for her dismissal. If an employer provides reasons for dismissal and discovers additional misconduct after the fact, it may be entitled to rely on that additional misconduct in support of the dismissal. This depends on whether that misconduct was known or could not reasonably have been discovered by an adequate investigation at the time of the dismissal.
Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.
