BC Court of Appeal

Single Breach of Privacy Policy May Warrant Summary Dismissal

In a decision consistent with its analysis earlier this year in Roe v. British Columbia Ferry Services Ltd., (summarized here), the BC Court of Appeal has upheld the summary dismissal of a long service employee who was caught looking at a confidential document on her employer’s computer system. In doing so, the Court of Appeal again relied upon the analysis required by the Supreme Court of Canada in McKinley v. BC Tel, [2001] 2 SCR. 161.

The appellant/plaintiff in Steel v. Coast Capital Savings Credit Union, 2015 BCCA 17, was a Helpdesk Analyst in the Credit Union’s IT department. Due to the nature of her position, Ms. Steel was one of a handful of employees who had the ability to access any document on the company’s network, including those documents stored in special “Personal Folders” which the Credit Union established for each employee. These folders were intended to be used for confidential documents and were secured so they could only be accessed by the employee in question and, if necessary, employees in the IT department. The Credit Union had a comprehensive protocol that employees in the IT department were required to follow when assisting an employee with a computer problem that might require them to access a document located in a Personal Folder. Underpinning the protocol was the fundamental rule that an employee in the IT department was not permitted to access a confidential document without the employee’s express permission and then only after following the various steps set out in the protocol.

Ms. Steel became aware that a manager who was in charge of assigning parking spaces, which were highly sought after by employees of the Credit Union, had created a priority list detailing who was next in line to obtain a parking space. Without permission, Ms. Steel accessed the list to see where her name sat, and was caught when the manager attempted to open the file at the same time, only to find that the document was being viewed by Ms. Steel. At the time of the incident, Ms. Steel had been employed by the Credit Union for more than 21 years with an apparently unblemished service record. Nonetheless, having regard to the nature of the misconduct and the position of trust Ms. Steel held in the organization, her employment was terminated with cause.

The termination was upheld at first instance by the trial judge and her decision was upheld by a majority in the Court of Appeal. Justice Goepel, speaking for that majority, outlined the relevant principles as follows:

“McKinley requires courts to apply a contextual analysis to determine whether employee misconduct amounts to just cause for dismissal… a single act of dishonesty as a matter of law no longer gives an employer an absolute right to dismiss an employee.

However, McKinley makes clear that a single act of misconduct can justify dismissal if the misconduct is of a sufficient character to cause the irreparable breakdown of the employment relationship…

The framework adopted by the Court in McKinley focuses on the nature and severity of the misconduct in relation to its impact on the employment relationship; it is not a balancing exercise between the value of the employment to the individual and the severity of the misconduct… [The issue is] whether, as a matter of fact, the employment relationship has irrevocably broken down.”

The majority held, in concluding that the employment relationship between the Credit Union and Ms. Steel had irrevocably broken down, the trial judge had not made any palpable or overriding error and upheld her decision.

The case again illustrates where employees placed in positions of significant trust breaches that trust, even those which appear relatively minor on their face, can nonetheless have the effect of causing a breakdown of the employment relationship sufficient to justify dismissal for cause.

A copy of the decision can be found here.

Questions relating to the content of the article may be directed to Paul Fairweather.