In Asurion Canada Inc. v. Brown, the New Brunswick Court of Appeal dismissed an appeal brought by the Employer regarding damages that were awarded to two former Employees who were terminated for cause after receiving unsolicited emails containing pornographic images from a common friend over a two month period. These emails were received and viewed by both Employees on the Employer’s workplace computers and were either immediately deleted by the Employees or transferred to their personal email addresses. The Employees did not share any of the pornographic images with any of their co-workers. The Employer believed that such conduct was in violation of the workplace internet acceptable use policy and terminated the Employees for cause.
The Court of Appeal reviewed the Employer’s workplace internet acceptable use policy and found that it did not clearly address the receipt of unsolicited pornographic materials at the workplace, and therefore did not apply to the Employees’ conduct referred to above. Furthermore, the Court of Appeal found that the Employees were not warned that their conduct would lead to their respective terminations. As a result, the Court of Appeal upheld the lower Court’s decision that the Employees’ terminations constituted a disproportionately severe penalty in the circumstances, and were therefore unjustified.
Impact of Decision on Employers
The above decision demonstrates that Employers need to be mindful of the wording used in their workplace policies, as any portions that are unclear or ambiguous will be construed against the Employer. Therefore, Employers must ensure that their workplace policies are drafted in a manner that will clearly address all acts that the Employer wishes to prohibit in the workplace. To achieve such clarity and application, Employers should seek guidance from experienced Employment Law Counsel.
Impact of Decision on Employees
Employees should be aware that Employers are required to meet a high threshold when attempting to demonstrate that they were justified in terminating an Employee for cause. As the above case demonstrates, any ambiguity contained within a workplace policy that is being relied upon as justification for a termination for cause may prevent an Employer from being able to succeed in establishing their position. Therefore, Employees who have been terminated with or without cause should consult with experienced Employment Law Counsel so that they are made aware of their rights and entitlements upon termination.
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