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Excessive and inappropriate Internet use—serious misconduct but not ‘time theft’

It is not uncommon for employees to use their employer’s Internet system for personal reasons.  In many workplaces there is an implicit, or sometimes explicit, understanding that employees will use the Internet for online banking, personal e-mails, and even social networking.  The question for employers is: at what point does an employee’s personal Internet use become so excessive and inappropriate that the employee may be disciplined?  A recent adjudication decision indicates that this threshold may be higher than many employers would expect.

In Andrews v. Deputy Head (Department of Citizenship and Immigration) (August 2011), Franklin Andrews, the grievor, was dismissed by the federal government in November 2009.  The termination followed an investigation by the employer which revealed that throughout lengthy periods in 2008 and 2009 the grievor spent between 50 per cent and 75 per cent of his workday browsing the Internet for non-work-related purposes.  To make matters worse, large amounts of this time were spent looking at sexually explicit images and pornography. 

The grievor was candid and cooperative during the employer’s investigation.  He admitted to the misconduct, showed remorse, and offered the explanation that he simply did not have enough work to do.  He claimed that there were never any issues with his performance, and that since no one knew of the materials he was accessing, no one was affected.

The employer nevertheless discharged the grievor, setting out its grounds as follows:

• Inappropriate use of government property and equipment, including the use of the department’s Internet and electronic network systems for non-work-related purposes, including viewing and/or searching of objectionable material, including electronic images of a sexually suggestive nature; and
• Misuse of government property and equipment, including the excessive use of the department’s Internet and electronic network systems for non-work-related purposes. 

Andrews grieved the dismissal.  He did not dispute the essential facts, but argued that terminating his employment was disproportionate to the offence.  In the grievor’s view, the employer failed to take into account significant mitigating factors, including:

• the grievor’s 27 years’ of service;
• a clean disciplinary record;
• exemplary performance reviews;
• the grievor’s candour and cooperation during the investigation; and
• his acceptance of responsibility for his actions and remorse.

The employer argued that the discharge was justified because the grievor’s conduct was clearly “time theft.” Although the employer acknowledged that time theft generally involves fraudulent acts, such as falsifying time-cards, it claimed that the concept of time theft should not be unduly restricted.  The evidence showed that the grievor “sat at a desk surfing the Internet for half the day, day after day and month after month, claiming pay for time not worked…” In the employer’s view, this was as fraudulent as falsifying a time-card.

IS EXCESSIVE INTERNET USE ‘TIME THEFT’?

Since the grievor admitted the acts alleged by the employer, the issue for the adjudicator was whether the penalty of discharge was reasonable. Adjudicator Rogers began by addressing whether excessive non-work-related use of the employer’s Internet was time theft.

She noted that in time theft cases, the impugned conduct usually indicates a fraudulent intent to steal time.  She mentioned the example of an employee punching another employee’s time card.  In such a case there is no mistaking the intent to steal time.  She contrasted this with the grievor’s circumstances:

But in an environment in which personal use of the employer’s Internet services is permissible on an employee’s own time and in which employees do not punch time cards or actively record their working hours, it becomes much more difficult to infer the requisite intent for a charge of time theft.  I simply do not see excessive use of the employer’s Internet services for non-work-related purposes as the beginning of a continuum that ends with time theft.  I believe that fraudulent intent is a fundamental element in the offence of time theft, but it is not in an allegation of misusing the employer’s Internet services.

SIGNIFICANT DISCIPLINE NECESSARY

It was clear that the grievor’s conduct, while not time theft, was still very serious.  Adjudicator Rogers rejected the grievor’s argument that there was no prejudice to the employer’s operations from the conduct.  She stated:

The grievor violated a number of employee policies, clearly misused the property and equipment that he was entrusted to use for work purposes, and engaged in behaviour that has no place at work …The fact that the grievor’s behaviour took place not once or twice but daily over many months is an aggravating factor, in my view, and one that makes significant discipline necessary.

In assessing the appropriate disciplinary response, the adjudicator examined the underlying purposes of workplace discipline.  She noted that deterrence is an important factor in determining discipline, but not the only one.  The potential to correct, and rehabilitate, the employee is also an important consideration that should not be lost to “heavy-handed” discipline.  Other factors, such as the length of service, the grievor’s disciplinary record, the nature of the offence, and the grievor’s credibility and remorse, all bear upon the employee’s future prospects for acceptable behaviour. 

In considering this host of factors, the adjudicator gave considerable weight to the grievor’s length of service (27 years), his clean disciplinary record, and his positive work performance.  She stated, “if past behaviour is a reasonably good predictor of future behaviour, then, based on the grievor’s past performance over many years, the grievor is capable of being a good employee in the future.”

Other factors that were persuasive to the adjudicator included the grievor’s acceptance of responsibility, his acknowledgement of guilt, and his remorse.  She commented “an employee who frankly and openly acknowledges his or her fault is less likely to repeat the offence than one who denies having done anything wrong.” 

The adjudicator concluded that the penalty of discharge was not reasonable in the circumstances and reinstated the grievor.  Nevertheless, the misconduct was serious and warranted a proportionate response.  Since the grievor had spent seven months being paid for work he was not doing, she imposed a lengthy without-pay suspension running from the date of discharge, November 2009, to the date of her August 2011 decision.

In Our View

Determining the appropriate discipline for an employee’s inappropriate use of workplace technology can be challenging for management.  One of the frequent problems, also evident in the Andrews decision, is that many employers have not implemented workplace policies that address the specific issues that can arise.  In the Andrews case, although the employer implemented policies relating to inappropriate Internet use, it did not specify what would constitute excessive use warranting discipline.  Without specificity, very often the “benefit of the doubt” is given to employees, particularly long-serving ones.  Organizations should review their Internet use policies and consider whether the employer’s expectations are clearly laid out.