Facts
The case concerns the dismissal of an employee, X., by the Civil Protection Consortium [Z.] due to the improper use of computer equipment. The Consortium had installed a spy program on X.'s computer to monitor his activities and had discovered that he had used the computer for private activities during work. The Consortium had therefore dismissed X. with immediate effect.
X. had made a career within the Consortium and had taken on the role of chief instructor and deputy commander. However, the Consortium had discovered that X. had used the computer for private activities, such as reading online newspapers, consulting social networks, watching television programs and other online videos, playing games and performing e-banking operations, booking trips and sending personal email messages.
The Cantonal Administrative Court had annulled the dismissal, deeming the employee's surveillance to be unlawful and that the means of proof obtained in this way could not be used. The Civil Protection Consortium [Z.] had therefore lodged an appeal with the Federal Court.
Considerations
3. Employee surveillance
The Federal Court examined the issue of employee surveillance and deemed the installation of a spy program on X.'s computer to be unlawful. The Court observed that employee surveillance must be proportionate and that the employer must have a legitimate interest in carrying out the surveillance.
4. Proportionality of surveillance
The Federal Court examined the issue of the proportionality of surveillance and deemed the employee surveillance to be disproportionate. The Court observed that the employer could have used less invasive means to monitor the employee's activities, such as analyzing available log files.
5. Protection of the employee's personality
Th…