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It is now common for employees to 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 arbitration cases looked at this issue.
In Andrews v. Deputy Head (Department of
Citizenship and
Immigration)
(August 2011) (PDF), an investigation revealed that the employee,
Franklin Andrews, spent ½ to ¾ of his workday using
the Internet for non-work-related purposes, for significant periods
of time in 2008 and 2009. Much of Andrews' browsing time was
spent viewing pornography.
During the investigation, Andrews was cooperative, remorseful
and admitted to the significant amount of time spent on personal
Internet use. He claimed that he did not have enough work to
do. He had a clean disciplinary record, 27 years of service,
stellar performance reviews, and consistently met his
deadlines.
The employer discharged Andrews for cause. At arbitration,
Andrews 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...". It argued that discharge
was appropriate.
The Adjudicator ruled that Andrews' actions did not amount
to time theft. Personal use of the Internet was permissible
at work, and time and working hours were not actively recorded. She
stated that time theft involves a fraudulent intent to deceive the
employer. This fundamental element of a fraudulent intent was not
found on the facts of this case. However, Andrews still bore some
blame.
Andrews was reinstated without back pay by the Adjudicator. This
was due to his cooperation, remorse, acknowledgment of guilt, and
significant mitigating factors.
The Arbitrator did not 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 did not 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.
Lessons Learned
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 did not amount to time theft.
The cases do highlight the need to have clear policies in order
to be able to rely upon these policies to uphold a termination. In
the Andrews case, the employer implemented policies
relating to inappropriate Internet use, but did not 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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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