Tuesday, March 10, 2009

FIRED - Personal Email at Work

Diane is an administrator for a medium size insurance broker in Kitchener Ontario. She has a very good record at work. All three of her annual performance reviews reported exceeded expectations. The quality of her work has never been a question, nor her attendance, punctuality or attitude.

About three weeks ago, a new V.P. of Operations was hired. Very shortly thereafter a memo was sent to all staff announcing audits, and structural changes to help cut costs, and weather the financial storm. A few wondered if that was a warning for layoffs. Diane was not concerned.

On Friday Diane went to work as usual. At 10:30 she was asked by her manager to meet with her in the conference room. At 11:00 Diane entered the conference room to see her boss, the new VP of Operations. and the HR Manager. GULP.

Diane sat down, and was told by the VP of Operations that as part of their audit, they discovered that Diane had used the work computers for sending and receiving personal email. This was a violation of the network usage policy. As a result she is terminated immediately with cause. Diane's manager looked over at her with a compassionate sorry.

The HR Manager escorted her to her desk, handed her final pay, and by 11:18 Diane was sitting in her car, and then burst into tears. What the hell just happened? Was this legal? here we will look at if you can be fired for breaking a policy.

Employment law is an extension of contract law. You agree to work for your employer under certain rules, and they agree to pay you. The amount of payment, and the rules are part of your contract. But what about policies, Are they part of the rules?

Policies can be part of the rules, and therefor you can be fired for breaking them. However just because a policy exists does not mean that you can be fired for breaking it. To be fired for breaking a policy, a few things have to happen.

The first thing is that the policy must be part of your employment agreement. To be part of your employment agreement the policy must be:

a) Clear
b) Published
c) Enforced uniformly
d) Not against the law

The most common problem for an employer trying to us a policy to terminate, is...

c) Enforced uniformly.

It is very common for companies to have a policy saying do not use for personal purposes. However very few companies enforce this. How long was the policy in place before it was being enforced? Is there a proper procedure for determining a violation?

In the case of this insurance broker, if the VP wanted to resurrect this policy, the proper thing to do would be to inform everyone that this policy is going to start to be enforced. The general accepted practice of using the network for personal purposes is now no longer accepted.

They did not do this. For whatever reasons the VP had, they tried to use this policy as a "get out of jail free" card. Fire for a reason and not be liable for wrongful termination. Well it does not work that way. Based on the facts we see here, there is a serious case for an action for wrongful termination.

A few other things to look out for in a policy include

i) Are the consequences clear
ii) Is the policy consistent with other aspects of the job
iii) Is the enforcement consistent with their disciplinary procedures
iv) Is the policy an attempt to go around specific laws, such as confidentiality, discrimination etc.

So if you find yourself in the unfortunate circumstance as Diane, don't make a scene. Ask exactly why you have been terminated, under what policy you have been terminated under. Be polite, but specific.

In addition you should seriously consider talking to a local employment lawyer. In Ontario you can call the Lawyer referral Service, run by the Law Society of Upper Canada.


It costs $6, and you will get a 30 minute conversation with a lawyer in your area, with that specialty for that $6.

Before you find yourself in this position, make sure you get a copy of the company policies, and you read them. Understand how they apply to the job. Understand how they are enforced. Most important...


That means you learn what the process for warnings, probation, and termination is. Know the process, in the unlikely event you get caught up in it.

Knowing is protecting, and Diane, call the 1-900 number above, ask for an employment lawyer in the KW area. You most certainly have reason to contest.

Copyright © 2009 Peter MacSweeney. Author and Consultant, Peter MacSweeney brings a fresh and down to earth approach on addressing day to day legal issues. With his unique approach Peter has helped over ten thousand people find the strength and knowledge to deal with their specific problem. He is currently writing a book on the most common legal concerns. This blog is a snapshot into his style and approach.

His blog can be viewed and subscribed to for free at 25dl.blogspot.com. You can also find more information and other legal articles at his site http://www.quick-court.com

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