30th Sep 2012
Author: Daniel A. Lublin
An e-mail could seriously harm your career. It cost Nicolas Di Vito and Alastair Mathers theirs.
Di Vito and Mathers, employees of MacDonald Dettwiler technology company, distributed a vulgar e-mail detailing the sexual gymnastics of an overweight female co-worker. They viewed it as a prank.
Although neither created this e-mail, they created a problem for themselves by not deleting it. About a year later, they revived their joke, forwarding the e-mail to a number of co-workers. Another employee posted it on the office bulletin board. When questioned, they lied. Unluckily, the e-mail was traced to their computers and they were fired.
Di Vito and Mathers sued for wrongful dismissal. Their claims were dismissed. The judge found the e-mail misconduct would not have been cause for dismissal, but would have warranted only a severe reprimand. Their lying during the investigation was the additional straw that broke the camel’s back.
Di Vito and Mathers’ story is a familiar one, as discipline for e-mail misuse is becoming a reality for Canadian employees. In fact, the number of companies terminating employees for e-mail misuse is growing.
How does an e-mail lead to your firing? The law requires that employers first prove misconduct occurred. With e-mails, the evidence never disappears. Employers own their office equipment and the content of the files located within their computer system. So, storing or sending jokes, pictures or e-mails can be traced back to its originator, even years later.
The law also requires discipline be proportional to the crime. Harassing or lewd e-mails sent to others undermines the essential conditions of employment and can be just cause. But being fired for e-mail misuse is not the only sanction employees face. There can be criminal charges for misusing a workplace computer. Employees can be slapped with charges for obscenity, hate propaganda or criminal harassment. Storing pornography is landing people in jail too. In these cases, guilty employees stand to lose more than just their job; their liberty is on trial as well. Computer use is a privilege, not a right. If you are found abusing it you too could end up surfing the classifieds for a job or even a criminal defence lawyer.