Even in the “Northern Exposure” zones of Canada, employees commonly have access to the Internet at work. Many use the Internet for personal reasons during work time. Many employers are concerned about the loss of productivity resulting from excessive personal use of the Internet.
A number of employers have attempted to characterize excessive personal Internet use as “time theft” as a result of the work hours lost. This is a concept historically used to describe situations when employees claim to be at work but are not.
Two recent Canadian arbitration cases looked at this issue.
In Andrews v. Deputy Head (Department of Citizenship and Immigration) (August 2011), an investigation revealed that Franklin Andrews, spent one-half to three-fourths of his workday using the Internet for nonwork-related purposes. Much of Andrews’ browsing time was spent viewing pornography. This happened for significant periods of time in 2008 and 2009.
During the investigation, Andrews was cooperative, remorseful, and admitted to the significant amount of time spent on personal Internet use. He had a clean disciplinary record, 27 years of service, stellar performance reviews, and consistently met his deadlines. He claimed that he was able to spend so much time on the Net because he simply didn’t have enough work to do.
Andrews was discharged for cause. At arbitration, he again acknowledged his wrongdoing. He argued that dismissal was a disproportionate reaction. The employer argued that Andrews had committed time theft, as he “sat at a desk surfing the Internet for half the day, day after day and month after month, claiming pay for time not worked . . .” The employer argued that discharge was appropriate.
The adjudicator ruled that Andrews’ actions didn’t amount to time theft. Personal use of the Internet was permissible at his workplace, and time and working hours weren’t actively recorded. She stated that time theft involves a fraudulent intent to deceive the employer. This fundamental element of a fraudulent intent wasn’t found in the facts of this case.
However, Andrews still bore some blame. He was reinstated without back pay. This was because of his cooperation, remorse, acknowledgment of guilt, and significant mitigating factors.
In Health Sciences Association of British Columbia v. Health Employers’ Association of British Columbia (October 2011) Vic Cheema, was dismissed for cause because of excessive personal Internet use in breach of employer policies. As in Andrews, the employer considered Cheema’s actions to constitute time theft.
The arbitrator didn’t accept the employer’s characterization, noting that Cheema was at the office during the relevant periods and responded to all workplace demands promptly and efficiently. The arbitrator chose to characterize Cheema’s actions as a “productivity issue, rather than theft.” He observed that while “[w]asting time on a job can certainly be subject to discipline even discharge,” in this case, the conduct didn’t amount to time theft.
The arbitrator described time theft as having a “quasi-criminal nature.” He noted that there was no “clear and convincing evidence” of Cheema using the Internet for personal reasons when he should have been working on preventative maintenance. This is similar to the lack of “fraudulent intent” required to make out the charge of time theft noted in Andrews.
The arbitrator substituted a 15-day suspension for the termination.
In both cases, the employees responded to workplace demands in a timely manner and had positive performance reviews. This ability to respond to workplace demands and the lack of intention to defraud the employer led to the arbitrators’ finding that excessive personal Internet use didn’t amount to time theft.
The cases do highlight the need to have clear policies to be able to rely on those policies to uphold a termination. In the Andrews case, the employer implemented policies relating to inappropriate Internet use but didn’t specify what would constitute excessive use warranting discipline.
This lack of specificity can make it difficult to justify termination, particularly in the case of a long-service, high-performing employee. Employers should review their Internet use policies to determine whether their organization’s expectations are clearly laid out for their employees.
Hadiya Roderique is an associate in the Labour, Employment and Human Rights Group. She is engaged in a broad practice assisting employers with matters relating to restructuring, downsizing, human rights, employment agreements and terminations, labour relations and collective agreement interpretation.