Government’s actions show organizations don’t necessarily need a specific computer-use policy when it comes to disciplining staff for downloading and circulating inappropriate material
A wide-ranging investigation of computer misuse by Yukon government employees that resulted in the investigation of hundreds of workers holds some important lessons for HR.
Two workers were fired and more than 500 others investigated after a large amount of pornography was found on the government’s computer system. The investigation started with the discovery of the inappropriate material in late 2002 and culminated early this year when the government and the Public Service Alliance of Canada/Yukon Employees Union resolved a number of grievances that arose from the investigation and the resulting disciplinary action.
The problem first came to light when a contractor was unable to run programs because a server had been overloaded. In looking into the problem, the government found an employee had saved a large volume of files on the system that contained sexually graphic and explicit images. Further investigation revealed the problem was not an isolated incident.
Despite not having wording in policy guidelines that didn’t specifically state that employees can’t use e-mail or the Internet to view, download or disseminate material with sexual content, the government was still able to discipline staff. Bill Craik, the territory’s Deputy Minister of Justice, said the lack of a detailed Internet-use policy does not prevent the employer from taking action against employees.
“Several arbitrators have confirmed the employers’ arguments that there need not be a policy in order for every workplace violation to be punishable,” said Craik. “A common example is stealing. The government doesn’t need to have a policy specifically telling our employees that it’s not okay to steal from the employer. As an employer, we still have the right to take remedial action if either situation occurs.”
When it comes to computer misuse, arbitrators have said that common sense dictates that the downloading or circulation of explicit or offensive pictures or messages would be a workplace offense despite the lack of clear prohibitions or even reference to consequences, he said.
He said the 1987 Supreme Court of Canada decision in Robichaud v. Brennan determined that employers have a responsibility to maintain a workplace free of discrimination and harassment.
Further, that obligation exists regardless of whether or not there has been a complaint of harassment or discrimination filed. In the Yukon’s case, no such complaint was filed — the offending material was merely stumbled upon.
He said there are three sources for the law on harassment and discrimination in the workplace:
•legislation (like the Yukon Human Rights Act);
•court decisions; and
•decisions of human rights tribunals and labour arbitrators.
The Human Rights Act prohibits sex discrimination in the workplace, and courts and tribunals have interpreted sex discrimination to include sexual harassment and determined that sexual harassment can include a single incident.
“The courts have defined sexual harassment broadly to include unwelcome remarks, jokes, cartoons, innuendos or posters, as well as the obvious pornographic or materials of a sexual nature,” said Craik. “The courts have also decided that employers who fail to eradicate harassment in the workplace will be found liable for creating or permitting a poisoned work environment.”
In regards to employee privacy, Craik said case law demonstrates that, under these circumstances, the law does not recognize a right to privacy of employees that would hamper the Yukon government’s investigation of computer misuse.
“Further, case law supports such actions by employers where there is reasonable suspicion or ‘cause’ for taking steps to track down e-mail from employees’ computers or from the employer’s backup drives,” said Craik. “The employer has a legal duty to act and the Yukon government (had) no discretion except to take immediate, investigative and where appropriate, remedial steps in relation to this conduct.”
Patricia Daws, Yukon’s Public Service Commissioner, said the investigation into the misuse of computer resources came down to protecting the rights of employees to work in an environment free from exposure to harassing or discriminating material.
She said the government had very clear guidelines when it came to what employees would be disciplined for in the investigation. The government followed an e-mail chain of inappropriate material that went through hundreds of workers, and called many of those workers in for interviews. Others were given letters stating they were under investigation.
“No employee has been disciplined for receiving or sending one e-mail, nor are we investigating employees who send an off-colour joke or cartoon,” said Daws. “Just because an employee has been unfortunate enough to have been copied on an offending e-mail does not mean they have actually been involved in any wrongdoing.”
She said the investigation was focused on employees who downloaded, saved or forwarded a significant amount of inappropriate material. She said the investigation had collected binders full of materials depicting acts of violence against women, bestiality and sexually explicit acts.
“Simply put, this type of material is unacceptable in any workplace, whether it is the Yukon government or elsewhere,” she said.
Moving ahead, Daws said the government will continue to support ongoing education. She said the government’s e-mail and Internet-use policies are sent to employees annually and courses are provided on discrimination and harassment in the workplace.
For more information see:
•Robichaud v. Brennan, 1987 CarswellNat 907, 1987 CarswellNat 1105, (sub nom. Robichaud v. Canada (Treasury Board)) 87 C.L.L.C. 17,025, [1987] 2 S.C.R. 84, (sub nom. Robichaud v. R.) 40 D.L.R. (4th) 577, (sub nom. Brennan v. Canada) 75 N.R. 303, 8 C.H.R.R. D/4326 (S.C.C.)
Two workers were fired and more than 500 others investigated after a large amount of pornography was found on the government’s computer system. The investigation started with the discovery of the inappropriate material in late 2002 and culminated early this year when the government and the Public Service Alliance of Canada/Yukon Employees Union resolved a number of grievances that arose from the investigation and the resulting disciplinary action.
The problem first came to light when a contractor was unable to run programs because a server had been overloaded. In looking into the problem, the government found an employee had saved a large volume of files on the system that contained sexually graphic and explicit images. Further investigation revealed the problem was not an isolated incident.
Despite not having wording in policy guidelines that didn’t specifically state that employees can’t use e-mail or the Internet to view, download or disseminate material with sexual content, the government was still able to discipline staff. Bill Craik, the territory’s Deputy Minister of Justice, said the lack of a detailed Internet-use policy does not prevent the employer from taking action against employees.
“Several arbitrators have confirmed the employers’ arguments that there need not be a policy in order for every workplace violation to be punishable,” said Craik. “A common example is stealing. The government doesn’t need to have a policy specifically telling our employees that it’s not okay to steal from the employer. As an employer, we still have the right to take remedial action if either situation occurs.”
When it comes to computer misuse, arbitrators have said that common sense dictates that the downloading or circulation of explicit or offensive pictures or messages would be a workplace offense despite the lack of clear prohibitions or even reference to consequences, he said.
He said the 1987 Supreme Court of Canada decision in Robichaud v. Brennan determined that employers have a responsibility to maintain a workplace free of discrimination and harassment.
Further, that obligation exists regardless of whether or not there has been a complaint of harassment or discrimination filed. In the Yukon’s case, no such complaint was filed — the offending material was merely stumbled upon.
He said there are three sources for the law on harassment and discrimination in the workplace:
•legislation (like the Yukon Human Rights Act);
•court decisions; and
•decisions of human rights tribunals and labour arbitrators.
The Human Rights Act prohibits sex discrimination in the workplace, and courts and tribunals have interpreted sex discrimination to include sexual harassment and determined that sexual harassment can include a single incident.
“The courts have defined sexual harassment broadly to include unwelcome remarks, jokes, cartoons, innuendos or posters, as well as the obvious pornographic or materials of a sexual nature,” said Craik. “The courts have also decided that employers who fail to eradicate harassment in the workplace will be found liable for creating or permitting a poisoned work environment.”
In regards to employee privacy, Craik said case law demonstrates that, under these circumstances, the law does not recognize a right to privacy of employees that would hamper the Yukon government’s investigation of computer misuse.
“Further, case law supports such actions by employers where there is reasonable suspicion or ‘cause’ for taking steps to track down e-mail from employees’ computers or from the employer’s backup drives,” said Craik. “The employer has a legal duty to act and the Yukon government (had) no discretion except to take immediate, investigative and where appropriate, remedial steps in relation to this conduct.”
Patricia Daws, Yukon’s Public Service Commissioner, said the investigation into the misuse of computer resources came down to protecting the rights of employees to work in an environment free from exposure to harassing or discriminating material.
She said the government had very clear guidelines when it came to what employees would be disciplined for in the investigation. The government followed an e-mail chain of inappropriate material that went through hundreds of workers, and called many of those workers in for interviews. Others were given letters stating they were under investigation.
“No employee has been disciplined for receiving or sending one e-mail, nor are we investigating employees who send an off-colour joke or cartoon,” said Daws. “Just because an employee has been unfortunate enough to have been copied on an offending e-mail does not mean they have actually been involved in any wrongdoing.”
She said the investigation was focused on employees who downloaded, saved or forwarded a significant amount of inappropriate material. She said the investigation had collected binders full of materials depicting acts of violence against women, bestiality and sexually explicit acts.
“Simply put, this type of material is unacceptable in any workplace, whether it is the Yukon government or elsewhere,” she said.
Moving ahead, Daws said the government will continue to support ongoing education. She said the government’s e-mail and Internet-use policies are sent to employees annually and courses are provided on discrimination and harassment in the workplace.
For more information see:
•Robichaud v. Brennan, 1987 CarswellNat 907, 1987 CarswellNat 1105, (sub nom. Robichaud v. Canada (Treasury Board)) 87 C.L.L.C. 17,025, [1987] 2 S.C.R. 84, (sub nom. Robichaud v. R.) 40 D.L.R. (4th) 577, (sub nom. Brennan v. Canada) 75 N.R. 303, 8 C.H.R.R. D/4326 (S.C.C.)
