Quebec arbitrator sets limits on checking employee emails

Search for information leak to union should not have included employee’s work emails: Arbitrator
||Last Updated: 05/05/2011

A Quebec employer violated an employee’s privacy when it checked emails in an attempt to find an information leak to the union, a labour arbitrator has ruled.

The situation stemmed from an email on Jan. 16, 2007, from a supervisor at Laval University to an employee that discussed a plan to rearrange job duties within a work group. The employee thought the reorganization was contrary to the collective agreement and forwarded the supervisor’s email to the union president. This led to the union president calling the supervisor about the reorganization.

The supervisor was surprised to hear from the union president and ordered the university’s computer servers to be checked to see where the leak came from. The employee’s email message to the union president was found.

A couple of days later, the employee quit her job and the supervisor brought up the email that had been forwarded. The employee informed the union president, who passed it along to the university’s HR department. As it turned out, the supervisor’s actions were contrary to the university’s privacy policy, which stipulated employee emails could only be monitored if there were “serious reasons” to believe there was a policy or by-law violation or the information was needed and the employee wasn’t available. The policy also allowed for email checking if the information was needed for a police investigation.

After the union filed a grievance, an arbitrator found the university had willfully violated the employee’s privacy rights under the Quebec Charter of Human Rights and Freedoms. The arbitrator noted the expectation of privacy in the workplace should be limited and employers had the right to check employee emails, but only under certain conditions, such as when the employer has “a legitimate and important objective” for which checking emails is necessary and there is no other way to reach that objective.

The arbitrator also found there was an expectation of privacy between unionized employees and unions, even if communication between them is sent on a employer’s email system.

The arbitrator ordered Laval University to pay punitive damages for the breach of the employee’s privacy and the amount would be related to the union’s costs for the arbitration. The university was also ordered to implement new procedures by Sept. 1, 2011, that would ensure similar breaches of privacy were prevented.

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