You use a mobile device paid for your employer. You use your employers desk top computer all day long. You may even use a lap top supplied by your employer.
You likely send and receive personal emails on all of these most of us commonly do. You might also even save personal documents or data on any of these, such as your personal financial information or family-related information.
In addition, many employers now have strongly-worded workplace policies prohibiting personal use of their hardware, technology, systems and domain name.
The question: Are your personal emails on your work computer/device actually private?
Historically the law in Ontario has been that if you use your work technology for personal matters, it is not private your employer has the right to access and review it if it is saved on or forms part of the technology, such as your personal emails on the employers exchange server or outlook program.
The law has evolved. For example, with respect to your personal emails, an individuals workplace computer is protected against unreasonable search and seizure by police R. Cole, 2012 SCC 53. But that important case did not address what happens between employees and employers, for example, but rather only to police investigations of employees.
A new Saskatchewan arbitration case now suggests that even your employer cannot access and rely on your personal emails without having reasonable grounds to search your personal data.
Often this arises in the context of a termination. For example, you have sent or received a personal email or text that your employer determines violates its workplace policies, or is otherwise objectionable. You are terminated, without cause. In support of its position, when you allege wrongful termination, the employer produces and relies on your personal emails, texts or data accessible from the employers own system(s) or hardware.
In this Saskatchewan case, SGEU v. Unifor, Local 481, 2015, 255 LAC (4th) 353, the employer terminated the employee for allegedly being a member of a notorious motorcycle gang, based on emails the employer searched for and obtained through its own domain name. The employee grieved the termination and alleged it was wrongful and there was no cause for it. The employer, to support its position for cause, sought to admit the emails as evidence supporting its decision to terminate the employee at the arbitration of the grievance. The employee objected on the basis that the employee had a reasonable expectation of privacy in the emails, relying heavily on the Cole decision.
The employer claimed the employee had no expectation of privacy in the emails because the employers workplace IT policy made it clear that all messages sent using the employers system were property of the employer and that employees should expect that no communications were confidential or private. Furthermore, the employers IT policy indicated that all IT resources were for work purposes only. Incidental use was neither expressly permitted nor expressly prohibited
The Arbitrator disagreed with the employer. The emails were not admitted into evidence. He agreed with the employer that its workplace policy clearly indicated that employees should not expect that anything on the system would be confidential or private. He also found that the IT policy went a long way towards reducing any expectation of privacy employees may have.
However, the Arbitrator ultimately found that, because of the pervasiveness and ubiquitousness of email in society, it is impossible for some incidental, personal use of work email not to occur. When finding that employees maintain a reasonable expectation of privacy in those personal emails on their employers system, the Arbitrator cited with approval comments in Cole that neither workplace policies nor ownership of the system are determinative of an employees expectation of privacy.
Because employees have a reasonable expectation of privacy in emails on an employers system, employers may only search those emails if it is reasonable. In order for the search to be reasonable, it must be reasonable in the circumstances to request a search, the search must be conducted in a reasonable manner, and there must not have been reasonable alternatives available to the employer.
In this case, the Arbitrator found that the employer had cause to conduct an investigation. However, the search was unreasonable because the employer did not consider less intrusive alternatives first, such as requesting additional information from third parties (like the police and investigating authorities, for example) or contacting other employees who may have relevant information. If these less intrusive alternatives proved unsatisfactory, the Arbitrator acknowledged that the employer may have had grounds for searching the employees emails.
What Does This Mean?
Despite this is an arbitral, out-of-province decision, it is likely good law and will likely be followed or adopted in Ontario. Ontario Courts often apply arbitral decisions when considering whether an employer had cause to terminate an employee, even if it is a union-based matter.
Any employer who wants to rely on personal emails found on the employers system to justify its decision to terminate an employee for cause may have to first establish that its search of the employees personal emails was reasonable.
While a strongly-worded IT policy may reduce an employees expectation of privacy in emails sent using the employers email system, such a policy is unlikely to eliminate the expectation of privacy entirely.
In the end? Employees have a reasonable expectation of privacy for their personal emails sent and received using their employers hardware and systems, but that privacy is not absolute and by no means should that expectation be relied on to insulate any employee from being terminated for cause in appropriate circumstances.
This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
More information? We’re here to help – [email protected] www.wardlegal.ca
