By Andrea Raso
Employers should ensure that they have policies in place governing use of work emails for non-work-related purposes. The issue of employee use of a work email for a personal matter was recently addressed by the BC Supreme Court in the decision of Kassam v. Dream Wines Corporation.
In this case, an individual, Brian Gunsten, who was an employee of Dream Wines Corporation, sold 138 bottles of wine to Moez Kassam. The $85,000 payment was sent directly from Mr. Kassam to Mr. Gunsten’s personal bank account. Mr. Kassam had previously purchased 18 bottles of wine from Mr. Gunsten in a similar manner. With each purchase, Mr. Gunsten issued an invoice to Mr. Kassam which was from Mr. Gunsten personally and did not contain any reference to Dream Wines. Mr. Gunsten had used his Dream Wines email account for all correspondence with Mr. Kassam. Mr. Gunsten did not send Mr. Kassam any of the 138 bottles purchased and only returned a small amount of the $85,000 payment. Mr. Kassam brought a claim against Mr. Gunsten and Dream Wines, claiming that the contract was with Dream Wines.
The Court found that the contract with Mr. Kassam was not with Dream Wines, but rather with Mr. Gunsten directly. Not only was payment made directly to Mr. Gunsten and an invoice issued from Mr. Gunsten and not Dream Wines, there was no GST or provincial sales tax collected or paid. There was also evidence that the wines purchased by Mr. Kassam were not listed as being for sale by Dream Wines. The Court further found that Mr. Kassam continued to communicate directly with Mr. Gunsten even after he became aware that Dream Wines had terminated Mr. Gunsten’s employment for his “moonlighting” by selling wine outside of Dream Wines.
Although Dream Wines was ultimately successful in having the claim against them dismissed, there may have been no basis at all for bringing such a claim in the first place had Mr. Gunsten not used his work email account for these communications. Employers should have robust and regularly updated policies in place governing use of company email addresses, and such email addresses should not be used for personal purposes. As part of those policies, employers should also be conducting regular monitoring of employee email to ensure compliance and discover issues should they arise. Many employers are surprised to learn that monitoring employee use of email and other work devices engages privacy issues. Policies put in place must be carefully drafted to ensure they meet current legal requirements. For assistance with drafting employee policies, contact Clark Wilson’s Employment & Labour Group.