Personal Use of Work Computer Was Not Just Cause

In Concrete Inc. v De Guzman, 2025 ABESAB 7 (Semaine), the Alberta Labour Relations Board found there was no just cause for dismissal of an employee found to have violated a company policy prohibiting personal use of company computers.

This case is important because allegations of just cause related to improper use of company computers and other digital infrastructure is common in employment law.

Facts

The following were some of the pertinent facts summarized by the Alberta Employment Standards Appeal Body:

• The plaintiff employee Judith De Guzman worked as a Project Manager / Estimator for Concrete Inc., a precast concrete manufacturer
• The employee signed a training document when she started with the employer which:
  • Contained some listed terminable offences, such as talking, texting, or other personal use of a phone except on break
  • Stated that personal use of company resources, computers and phones were for work purposes only and would result in termination for cause
• Concrete Inc. also had a progressive discipline policy with typical steps of verbal warnings, written warnings, suspensions and terminations. It indicated that severe misconduct could result in any level of discipline.  It also indicated that the purpose of the policy was to all employees an opportunity to improve
• The employer was unhappy with the productivity of the employee, so they reviewed the search history on her computer to see what she was doing at work
• The employer found a number of instances where the employee had accessed personal email and had done what appeared to be personal career searches. Its not clear to me reading the case how many instances, but seems to have been more than 5 instances over a few weeks
• The employer terminated the employee’s employment, purportedly for just cause
• The employer had never given her a relevant warning, having only discovered these multiple instances of personal use
• An Employment Standards Officer had found there was no just cause for dismissal and ordered the employer to provide termination pay to the employee
• The employer appealed, arguing it had just cause to terminate the plaintiff’s employment

Analysis / Conclusion

This decision was rendered by ALRB Panel Member Wassila Semaine.

The ALRB set out the test to determine if an employer has just cause for summary dismissal, as set out in McKinley v BC Tel, being a contextual approach which considers the surrounding circumstances and the nature or degree of misconduct involved, and then determines if the employer’s actions in terminating for cause were proportionate to the misconduct involved.

The ALRB found immediately that the plaintiff was guilty of misconduct for the personal use of the company computer. 

However, in assessing the seriousness of the misconduct and whether the dismissal was proportionate, the ALRB found:

1. The misconduct was not on the egregious end of this sort of conduct, as it did not involve illicit conduct or accessing or disseminating inappropriate material
2. Concrete Inc.’s policies were not consistent and clear on how this particular misconduct would be treated.  One policy suggested termination for cause for any personal use, but another policy suggested progressive discipline was typical for policy violations
3. Concrete Inc.’s evidence of misconduct was less clear overall than it should have been to establish cause for dismissal

In the result, the ALRB found that the employee misconduct may have warranted discipline, but it did not warrant dismissal for cause.

My Take

This result is not particularly surprising, given the evidence.  If this employer had given this employee a prior warning for this sort of misconduct and then discovered this level of personal use, I think it would still not be a clear case for the employer – but it would have been a closer case. 

Employers usually have great difficulty assessing on their own whether they have just cause for dismissal.

Mere dissatisfaction with an employee is obviously not enough to establish just cause.  If it were, then the majority of dismissals would be for cause – because dissatisfaction of one kind or another underlies most dismissals. 

The vast majority of dismissals are not for just cause, and employers should not assert it lightly because reckless cause allegations can upset an adjudicator and cause them to exercise their considerable discretion in ways harmful to the employer.  Any employer that does not believe what I am saying should ask their employment lawyer before deciding to assert just cause.

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Bow River Law is a team of knowledgeable, skilled and experienced employment lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.