Search of Employee’s Private Social Media Amounts to Privacy Breach, “Tainting” Misconduct Investigation

In the recent case of Canadian Broadcasting Corporation v Canadian Media Guild, 2021 CanLII 761 (Slotnik), a BC arbitrator reinstated an employee who had been fired for cause after his employer, the CBC, discovered that he had leaked his concerns about the CBC’s policies to other news organizations.

Background

In 2019 Don Cherry was terminated from Hockey Night In Canada after a Remembrance Day outburst that was contrary to the values of his employer. This eventually led to another, lesser known termination at the CBC.

Shortly after Mr. Cherry’s termination, the grievor in this case, Ahmar Khan, posted on his personal Twitter account about his concern with “deep rooted racism” on national TV. His account included his CBC address. CBC instructed Mr. Khan to remove the post, because it violated company policy on publically expressing opinions. He did so reluctantly.

Soon afterward, Mr. Khan privately contacted associates at other news organizations, expressing his concerns about the CBC’s application of its policy. After doing so, he left his work laptop open on his desk, with one of these private messages open on the screen. A colleague observed this message, and proceeded to search through Mr. Khan’s private social media accounts and take screenshots of these conversations, which he sent to his manager. Some of the messages contained language disparaging the CBC, and one contained a homophobic slur.

After reviewing the messages, the CBC terminated Mr. Khan’s employment, citing breach of trust. Mr. Khan and the CMG grieved his termination, arguing that the search of his private social media and messaging was a violation of his privacy.

Arbitrator Slotnik applied the test set out by the Supreme Court of Canada in R v. Cole, which requires an evaluation of the “totality of the circumstances” to determine whether an individual has a reasonable expectation of privacy in the workplace. In these circumstances, the Arbitrator found that Mr. Khan had an expectation of privacy, albeit diminished, in relation to his private social media and messages sent using a work computer. The Arbitrator went on to find that Mr. Khan’s failure to log out of his personal accounts was “not an invitation to inspect his private messages, even those that show up immediately on the screen, let alone those that may be revealed only by a search.”

Importantly, the specific language of the collective agreement in this case included a “right work in an environment that respects their personal privacy and is free from surveillance…subject to legitimate security needs”. The Arbitrator noted that this language “suggests a commitment [to privacy] that may go beyond statutory and common-law rights to privacy”.

The Arbitrator described the CBC’s sensitivity to information being leaked to journalists “ironic”. He also disagreed with the CBC’s assessment that Mr. Khan’s comments caused reputational harm, finding that the impact of Mr. Khan’s information was minor and speculative in the context of an industry-wide conversation about journalistic perspective that was already underway.

Ultimately, the Arbitrator concluded that Mr. Khan’s “minor” misconduct was “far overshadowed by the breach of his privacy that enabled the employer to discover those activities”. This breach of privacy “tainted” the CBC’s determination that cause for dismissal existed. The Arbitrator ordered that Mr. Khan be reinstated, at least for the remainder of his contractual term.

Takeaways for Employers

This case serves as a timely reminder to employers about the boundaries of employee privacy in the workplace, and the importance of conducting investigations into misconduct that are mindful of employees’ reasonable privacy expectations:

• Employees can have a reasonable expectation of privacy in their personal messages or social media activity, even if that activity is conducted on an employer’s device or network.
• In some cases, employers may have a positive obligation to assist employees in maintaining their own personal privacy in the workplace, or at minimum should not treat an inadvertently open laptop as an invitation to conduct a search.
• Investigations into suspected misconduct should be conducted properly and formally, in accordance with employer policy and by authorized individuals, with the participation of the employee being investigated if appropriate.

 

Keri Bennett is a lawyer at the Vancouver-based employment and labour law boutique of Roper Greyell LLP and leads the firm’s Freedom of Information and Privacy Practice. Keri can be reached at kbennett@ropergreyell.com.  

Jordan Michaux is a lawyer at the Vancouver-based employment and labour law boutique of Roper Greyell LLP and a member of the International Association of Privacy Professionals. Jordan practises in all areas of labour and employment law with an emphasis on workplace privacy issues.  Jordan can be reached at jmichaux@ropergreyell.com.  

For more information about Keri and Jordan and the work they do at Roper Greyell, please visit www.ropergreyell.com.

While every effort has been made to ensure this article is accurate, you are urged to seek specific advice on matters of concern and not to rely solely on the contents of this article.  The article is meant for general information purposes only and does not constitute legal advice.