The inadvertent pocket-dial or "butt-dial" has
happened to everyone. In most cases, there are no real
consequences, other than a puzzled or frustrated person on the
other end of the call.
In a recent Alberta case Ross v. IBM Canada Limited, 2015, ABQB
563; however, a highly paid employee was summarily
terminated for cause when the employer learned, after two
inadvertent, butt-dial communications, that their employee was
regularly working for his own private corporation on what the
employer considered to be company time. The employee sued for
wrongful dismissal, but an Alberta Court of Queen's Bench has
upheld the dismissal for cause.
The Plaintiff was hired by IBM Canada for a full-time
position. During the hiring process, the Plaintiff informed
IBM that he had been president of a privately held business in
custom residential storage components. The Plaintiff told IBM
that he would transfer all operational responsibilities of this
company to his wife, upon acceptance of the job.
IBM also had a clear business conduct guideline with respect to
the use of IBM's time and assets.
The Plaintiff declined to attend a scheduled meeting telling his
supervisor that he was "double-booked" with respect to an
earlier scheduled appointment.
That afternoon, the fateful pocket-dialed calls occurred and the
IBM supervisor heard portions of conversations that the Plaintiff
was having with one of the customers for his own business.
Days later, the Plaintiff was terminated for cause. IBM
was able to prove that the Plaintiff charged some long distance
calls for his own corporation to the IBM account and also made
minor use of IBM equipment for his side-businesses benefit.
The Plaintiff suspected that he was terminated on the basis that
he did not contribute to the close of any deals in his time at
IBM. Justice Veit concluded that the Plaintiff performed
non-IBM work while on the company's time. The Court
concluded that this was not an isolated incident and that the
evidence established, he was working for personal gain on IBM
Justice Veit further concluded that IBM was not required to give
the Plaintiff warning or an opportunity to change his
behaviour. It was held that the Plaintiff was a senior,
mobile and autonomous employee. The relationship was
"imbedded in an honour system". Accordingly,
IBM's conclusion that the breach of trust was not repairable,
The employer further counterclaimed for unjust enrichment while
taking salary from IBM. The counterclaim for damages was
This case is an encouraging reminder for employers that just
cause, in circumstances where there is time theft, can be
upheld. Employers should also be reminded that if they become
aware of instances of time theft, even though odd circumstances
such as a butt-dial, this evidence must be preserved, as it will be
critical in establishing cause.
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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