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Man fired for watching porn at work reinstated

Posted by on Jun 1, 2012 in Legal, Moneyville | 0 comments

Read this post and comments on moneyville.ca

May 31, 2012
By Sheryl Smolkin 
Image SHUTTERSTOCK IMAGES

I have a ritual when I sit down at my desk every morning with a cup of coffee. I check Moneyville to see how readers are reacting to my stories and also read  what’s new on the site. Then I open Facebook to see if anything interesting was posted overnight. I may also take a quick look at the weather for the week and the newsfeed on LinkedIn.

Since I am self-employed, my time is my own. But what if I worked for someone else? Could my personal internet use or excessive internet use be characterized as theft of time? Is web surfing on company time a firing offence? In a recent issue of “HR Space,” Fasken Martineau lawyers discussed two unusual 2011 cases where labour arbitrators ruled that personal use of the internet on company time was neither “time theft,” nor sufficient to warrant dismissal. But you may not be so lucky.

Franklin Andrews was employed by the Department of Citizenship and Immigration for 27 years when he was fired in November 2009. His employer alleged that his discharge for “time theft” was appropriate because he used government property and equipment for inappropriate and non-work-related activities including viewing pornography.

His supervisor became aware of his extra-curricular activities when a routine audit by IT security found 335 sexually explicit images on his computer. An investigation revealed that Andrews spent ½ to ¾ of his time each day on the internet in 2008 and 2009 viewing pornography. He said he did not have enough work to do.

Adjudicator Kate Rodgers ruled  that his actions did not constitute time theft because there was no fraudulent intent to deceive the employer. Nevertheless, she found him guilty of serious misconduct. In view of his long service, clean disciplinary record and acceptance of responsibility he got his job back, but he was not awarded back pay for the period from November 2009 (when he was suspended) to the decision date (August 2011).

Similarly, biomedical technician Vic Cheema (hired in November 2001) was dismissed for cause in August 2010 by the Fraser Valley Health Authority in B.C. for spending an excessive amount of time on non-work related websites using his company laptop. He signed off on the company internet policy which permitted personal use only during scheduled break times and did not allow downloading or listening to music. Yet he frequently listened to internet radio using headphones.

Related: An employment contract can help if you are fired

While an audit revealed hundreds of examples of non-work-related internet use over a period of months on Cheema’s machine, it was difficult to isolate when these incidents took place during the day or the length of each access. There was also no evidence that he neglected his work.

As a result, the Arbitrator Nicholas Glass found  that Cheema violated the employer’s electronic communications policy, but the level of abuse alleged at the time of his termination was not proven. Therefore he chose to label the employee’s actions as “a productivity issue, rather than [time] theft.” Because of Cheema’s unprompted change in behaviour before the internal audit, his apology and genuine remorse, Glass substituted a 15-day suspension for the original discharge.

In both of these cases, the employees were long-term employees who continued to meet all of their job requirements in spite of their excessive and improper use of the internet. While Fraser Valley Health Authority had an internet use policy, the policy did not specify what constitutes excessive use warranting discipline.

“Had these employees denied their actions initially when confronted then the issue would have been not just the time theft but lying to their employer and the results could have been very different,” says Fasken Martineau partner Karen Sargant.

Related: 10 things people ask employment lawyers

What these decisions mean  is that before you surf the internet at work for personal use you should understand company policy. Looking up phone numbers online or making an occasional electronic restaurant reservation would not be viewed as a problem by most employers, but you don’t know until you ask. Activities like downloading pornography or playing poker online are a whole different ballgame.

Good jobs are hard to come by, so find out the rules and follow them. Surprisingly, both Andrews and Cheema got to keep their jobs, but in similar circumstances you may not be so lucky – particularly if you work in the private sector or there is no union to grieve on your behalf.

Related: Dissing your boss could get you fired

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