Risk of Disclosure of Sensitive Information through Corporate Email, Loss of Trust and Dismissal for Cause Declared Unfounded

The employer argued that the employee’s behavior had generated a loss of trust that made it impossible to continue with the labor relationship, which, in the employer’s opinion, was a just cause for dismissal. The employee, on the other hand, rejected the cause of dismissal, claiming the payment of severance for dismissal without cause and fines, among other items.

In this context, the Court of Appeals affirmed the first instance decision that had rejected the cause of dismissal and, among other issues, held that the loss of trust was a subjective feeling and that, consequently, it was not an independent case of just cause of dismissal and that the disloyal behavior of the employee and its scope must be duly proved by the employer.

Additionally, one of the main elements analyzed by the Court of Appeals when it assessed the decision adopted by the employer was the fact that the employer had not demonstrated to have duly notified the plaintiff of the company policy that dealt with the use of IT tools and corporate email, nor had it requested the prior written consent by the employee authorizing the employer to monitor and control her communications through the company email, which affected the employee’s privacy.

In relation to the restrictive interpretation of just cause, it is to be noted that Section 242 of the Labor Contract Law No. 20,744 provides for the possibility for any of the parties to terminate the employment relationship upon failure by the other party to comply with their obligations, to the extent that such breach creates a damage and that, due to its seriousness, it does not allow to continue with the relationship. According to the same legal provision, the analysis and definition of the validity of the cause of dismissal must be made by the labor judges at their discretion. Additionally, the dismissal for cause decided by the employer must be communicated in writing, with a sufficiently clear description of the reasons that ground the termination of the relationship, among other requirements.

With respect to the interpretation of the use and monitoring of IT tools and communications, the judgment under analysis is consistent with prior court precedents dealing with the power to control IT tools and communications in the workplace, both at the international and domestic level, as it does not reject the possibility for the employer to exercise such control and, once again, treats as a central element the existence (or not) of an internal policy for the use and monitoring of work tools and business email, and, as an even more significant element, the actual notification to the employees of, and their written consent to, the terms and conditions of such policy.

We do not share the decision of the Court of Appeals given that, as a result of this decision, a merely formal aspect (i.e. the notification of the policy,) which could have validly been subject to a specific and independent sanction to the employer, prevents due sanction to a clear and openly illegitimate behavior by the employee (as the decision raises no doubt about the fact that the sensitive information was actually offered to third parties.)

Notwithstanding, we reiterate the importance of: (i) implementing and reviewing the terms and conditions of the internal policies regarding the use of electronic tools and communications, as well as their control and monitoring; (ii) informing in such documents the scope of control and monitoring to be performed by the employer; (iii) notifying the employees of such policies in writing; and (iv) requiring express consent in writing with the signature of each employee.