A recent decision from the Canadian Public Service Labour Relations Board is raising eyebrows among lawyers, employers and the online blogging community for its finding that an employee's excessive, unauthorized and inappropriate Internet use did not amount to "time theft" and did not justify his termination.
Andrews v. Canada
Franklin Andrews was a senior analyst and policy advisor in the federal Department of Citizenship and Immigration, with 27 years experience, when he was terminated in November 2009. His termination came as a result of the discovery that he had been spending 50% to 100%-yes, 100%-of his work days "surfing" the Internet for personal enjoyment rather than working. Aggravating the issue was the fact that, in addition to sports, entertainment and social media sites, Mr. Andrews had regularly visited pornographic websites.
Upon being confronted by his managers, Mr. Andrews fully admitted that his Internet use had been excessive and inappropriate. He was remorseful and apologetic, and co-operated fully with the investigation. Ultimately, the Ministry terminated him for these actions on the grounds that such excessive and inappropriate misuse of his work time and work equipment amounted to time theft.
Despite his acknowledgment of wrongdoing, however, Mr. Andrews grieved the termination, arguing that, though his actions may have been wrong and warranted some form of discipline, the decision to terminate him outright was too extreme. In particular, he argued that he had been "underworked," that his supervisors had not given him enough work to keep him busy through the work day. He had merely been filling his otherwise free time at work with personal Internet browsing.
Adjudicator Kate Rogers was asked to determine whether Mr. Andrews's actions really amounted to time theft justifying termination of his employment. Ms. Rogers noted that, historically, the concept of time theft has involved some aspect of overt fraud, like, for example, employees deliberately altering time cards or "punching in" for each other.
Despite Mr. Andrews's acknowledgment that he had used most or all of his work time for personal Web surfing, Adjudicator Rogers held that his actions did not carry the element of fraud necessary to amount to time theft. Certainly, Mr. Andrews's actions were inappropriate and unacceptable in the employment relationship. However, his wrongdoings required a level of discipline somewhere below outright termination. In the circumstances of this case, Ms. Rogers held that a lengthy suspension amounting to nearly two years without pay was an appropriate penalty. Mr. Andrews was thus reinstated in his position with the Ministry.
Reaction to the decision
Not surprisingly, the Ministry of Citizenship and Immigration, Mr. Andrews's employer, is less than happy with the decision and the precedent it appears to set. Immigration Minister Jason Kenney called the decision to reinstate Mr. Andrews "an insult to taxpayers."
Reactions from the legal community have been decidedly less indignant. Many legal bloggers acknowledge that the issue of time theft and Internet use has represented a grey area in the law for some time now, particularly where employers don't have a clear policy in place setting out the limits for personal Internet use during work hours. This was such a case.
But perhaps what is most surprising is the apparent lack of outrage among the very taxpayers Minister Kenney claimed should be so insulted by the decision. One might expect taxpayers in today's difficult economic times to resent the news of a public servant keeping his job in light of such blatant abuse of government time and money.
The blogosphere is alive with discussion threads on the decision, but many of the comments submitted by readers suggest a level of sympathy for Mr. Andrews. Many readers admit that they themselves are guilty of similar misuse of workplace time and equipment, and hope that they would not be subject to termination if caught. Others point the finger of blame, at least in part, at Mr. Andrews's supervisors for not ensuring that he was monitored and was given enough work.
The fallout
So what is an employer to do? It's clear that employee misuse of time at work is a significant problem, that Mr. Andrews's case might be closer to the rule than the exception. Added to this are the risk of virus and malware damage and the increased risk of sexual harassment issues when workplace computers are used to surf illicit websites.
It's no surprise, then, that some employers choose the knee-jerk solution of limiting significantly, or throttling altogether, their employees' access to the Internet during work hours. But this is neither practical nor efficient where such access has become a fundamental part of doing business.
Even partial bans (for example, merely blocking social media and/or porn sites) can be awkward to enforce and cause unintended obstacles to workplace efficiency.
Toronto-based technology host, journalist and strategist Amber MacArthur argues that it does not make sense for employers to impose such bans on employees. Restricting all or most Internet access can convey the message to employees that they are not trusted, damaging morale. Even partial bans will tend to scare away younger, techsavvy, well-qualified prospective employees. The best answer is a clear, well-communicated policy setting out the employer's expectations concerning employees' Internet use during work hours.
Our friends at Jaffe PR have been giving this advice for some time now. Indeed, in the Fall 2009 issue of Lawyers Alert, they emphasized the importance of providing employees with clear guidance on their online conduct, both during and after work hours, to help them understand how their activities fit into the workplace. They even offered a free social media policy template for use by readers.
The Andrews case reinforces the need for such clarity now more than ever. §
Duane Chris is a non-practising lawyer providing legal research, writing and editing services in Southern Ontario. He can be reached at duane@dcresearch.ca or 519-588-2602.