In Gravelle v Deputy Head (Justice) numerous tips led to an investigation of the grievor, a human resources assistant. That investigation revealed that the grievor had engaged in extensive abuse of his privileges on the employer's network, as well as other misconduct. Specifically, that misconduct consisted of:

Excessive and unreasonable use of the employer's network and internet connection in relation to his interest in cars and mechanical subjects, which the employer claimed was a for-profit side business. In particular, he sent a large number of emails to at least one co-worker concerning this interest, and used the Internet at an abnormally high rate given his job.
On two separate occasions, forwarding confidential human resources documents including personal information to his personal email accounts. There was evidence that he attempted to circumvent the password locks on some of these forwarded files which involved a job competition in which the grievor participated.
Following the investigation, the grievor's employment was terminated on the basis of these two factors.

The employer had in place a policy allowing reasonable, but limited, personal use of the network. In addition, on each occasion that the grievor logged in to the network, he was prompted to acknowledge agreement to the terms and conditions of use of the network. The grievor was therefore aware of the employer's policy, which he admitted breaching.

The arbitrator was particularly struck by the grievor's inappropriate forwarding of private information to himself on an unsecured server. That action required the employer to inform over 100 employees that their privacy had been breached as a result of the employee's actions.

The arbitrator also found that the grievor regularly used the internet to a far greater degree than his position required, and had extensive email communications with another worker on personal matters. The arbitrator found that this activity constituted abuse of the network for the grievor's personal use.

The arbitrator did not feel that there was sufficient evidence to call the grievor's interest a business rather than a hobby, but in any event acknowledged that the network use in connection with that hobby was inappropriate.

The arbitrator rejected the grievor's defence that the employer condoned the behaviour because it was aware that in the past he had used the network for personal purposes. The employer was not aware of the extent and intensity of the grievor's misuse of its network, and once it was aware, it took prompt and decisive action.

Decision

The arbitrator ultimately determined that the inappropriate use of the personal information of other employees was severe enough to warrant termination. Specifically, this abuse severed the trust necessary to maintain the employment relationship.

Interestingly, the arbitrator determined that the misuse of the network, alone, was insufficient to support termination, although discipline in the form of a suspension was warranted.

What Employers Should Know

The arbitrator focused on the breach of privacy misconduct as justification for summary dismissal. Although not grounds for termination, the arbitrator found that the severe abuse of the employer's network was cause for significant discipline in the form of a suspension.

Employers must remember the requirements of progressive discipline in reacting to an employee's misuse of technological resources. Strong policies can help support an employer's later discipline of an employee. This is particularly so in the case of technology, where policies can vary. Employers must be particularly diligent to ensure that workers are aware of policies relating to workplace technology and the potential for discipline in the event of their breach.

Although not successful in this case, it is important to be aware that employees may claim that employers condone their use of network resources for personal business. In order to minimize the likelihood of the success of this defence, employers must respond immediately upon learning of misuse of their technological resources, and enforce their policies accordingly. Failure to do so may harm an employer's ability to rely upon those policies for later discipline.

Note: This a reprint of an article by Stringer LLP.