Un-fired: when looking at porn at work isn’t a termination-worthy offense

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When the Department of Citizenship and Immigration found employee Franklin Andrews spent up to three-quarters of his work time looking at pornography they fired him for time-theft – only to have to re-hire him after an arbitrator found Andrews’ actions were “serious misconduct” but not time-theft, and therefore not an offence worthy of dismissal. He was re-instated to his job, but not awarded back pay.
 
Time-theft can be difficult for employers to defend, says Filion Wakely Thorup Angeletti associate Carla Nassar, especially as Andrews was found to be meeting his job requirements. The employer may have had a different result if they had a computer use policy in place and could argue that the employee was terminated because the policy was breached.

“I think they could have been successful if they had taken a different tack. It would depend on whether they had an internet or computer policy in place and would depend on the nature of the content,” Nassar says.

Despite the importance of computers in workplaces, and the risks of misuse, many employers still don’t have policies in place – or are still relying on 10 year old policies.

When it comes to implementing a computer use policy, the process will depend on whether your workers are unionized and what limitations are put on the rules you can change. Nassar says in most cases it would not be a change that could amount to constructive dismissal, but it’s always important to check your legal standing when making changes to employee agreements.

So what should be in your policy? Very clear guidelines to computer use, internet use and social media – which are all separate, individually important aspects of the issue.

“It’s important to be very clear about the respective rights of a the employer and the employee  and what will be considered conduct worthy of discipline,” Nassar says.

With a Supreme Court finding last year that employees may have some expectation of privacy at work, it’s important to explicitly state that email and internet use will be monitored so employees can’t claim they didn’t know or expect to be monitored. Depending on the type of role, the right to conduct random computer searches could be considered invasive.

For social media policies, you can prohibit use entirely, but should also make it clear what off-duty conduct would be considered a violation of duties. In some situations employees can be disciplined for off-duty conduct, so be clear that disparaging their employer or divulging confidential information will be considered worthy of discipline.
 

 

 

 

 

 

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