When the Supreme Court of Canada released its decision in R v Cole, 2012 SCC 53, which found that an individual’s workplace computer was protected against unreasonable search and seizure by police, many wondered how the decision would apply to the relationship between employers and employees.  A recent labour arbitration decision has found that employees have a reasonable expectation of privacy regarding personal emails, even when the employer’s policies state otherwise.

In SGEU v Unifor, Local 481 (2015), 255 LAC (4th) 353 (Ponak), the Saskatchewan Government Employees Union (the “SGEU”), acting in its capacity as an employer, terminated one of its employees for being a known associate of a motorcycle gang.  SGEU became aware of the employee’s affiliation with the motorcycle gang after being informed by a member of the Saskatchewan Ministry of Justice that the employee had been involved in a bar fight wearing colours and insignia affiliated with the gang.  The Director of Human Resources for the SGEU asked the employee if he was an associate of the gang.  The employee admitted he had previously been a member but denied any recent involvement.  The Director of Human Resources chose to investigate further by reviewing emails the employee had sent or received through the “SGEU.org” domain.  This included personal emails between the employee and his wife.  The search of the emails revealed that the employee was affiliated with the gang, and he was dismissed.  The employee, through his bargaining agent, Unifor, grieved the dismissal.

SGEU sought to admit the emails as evidence supporting its decision to terminate the employee at the arbitration of the grievance.  Unifor objected on the basis that the employee had a reasonable expectation of privacy in the emails, relying heavily on the Cole decision.  SGEU responded that the employee had no expectation of privacy in the emails because the SGEU’s IT policy made it clear that all messages sent using the SGEU’s system were property of SGEU and employees should expect that no communications were confidential or private.  Further, the IT policy stated that all IT resources were for work purposes only.  Incidental use was neither expressly permitted nor expressly prohibited.

Arbitrator Ponak found that the emails were inadmissible.  He agreed with the SGEU that the policy was clear that employees should not expect that anything on the system would be confidential or private, and said that the IT policy went a long way towards reducing any expectation of privacy employees may have.  However, Arbitrator Ponak found that, because of the 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, Arbitrator Ponak cited with approval comments in Cole that neither workplace policies not ownership of the system are determinative of an employee’s expectation of privacy.

Because employees have a reasonable expectation of privacy in emails on an employer’s system, employers may only search those emails if it is reasonable.  Arbitrator Ponak followed previous arbitral awards when he stated that, 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 the context of the case before him, Arbitrator Ponak found that SGEU had cause to conduct an investigation.  However, the search was unreasonable because SGEU did not consider less intrusive alternatives first, such as requesting additional information from the Ministry of Justice or contacting other employees within SGEU who may have relevant information.  If these less intrusive alternatives proved unsatisfactory, Arbitrator Ponak acknowledged that SGEU may have had grounds for searching the employee’s emails.

Although the SGEU v Unifor decision is in the context of an arbitration pursuant to a collective agreement, it has important implications for all employers.  Courts will apply arbitration decisions when considering whether an employer had cause to terminate an employee, regardless of whether that employee’s employment was governed by a collective agreement.  Any employer who wants to rely on personal emails found on the employer’s system to justify its decision to terminate an employee for cause may have to first establish that its search of the employee’s personal emails was reasonable.  Although a strongly worded IT policy may reduce an employee’s expectation of privacy in emails sent using the employer’s email system, it appears that such a policy cannot eliminate the expectation of privacy entirely.