Most people have received (or sent)
a "pocket-dial", which is an unintentional cell phone
call that is made by a phone when it is in a person's pocket.
In a recent decision from Alberta, an employee's pocket-dial
revealed that he was performing work for his own personal business
on company time, leading to his dismissal for cause.
In Ross v IBM Canada Limited, the
plaintiff, Mr. Ross was hired by IBM as a senior salesman, with a
base salary of $140,000, and an expected total remuneration,
including commissions of $193,000. During the recruitment process,
Mr. Ross informed the company that he and his wife owned a company
called Compartment Inc. that designed, manufactured, sold and
installed custom residential storage units. Mr. Ross had been
responsible for the operation of the business, while his wife had
handled administrative duties. However, he advised IBM that he
would transfer the operational duties to his wife when he commenced
employment with IBM.
Mr. Ross was made aware of
IBM's Business Conduct Guidelines. The Guidelines prohibited
the performance of non-IBM work while working on IBM time, and the
use of IBM assets, including equipment like telephones for any
outside work. The Guidelines warned that a violation could lead to
disciplinary action up to and including termination.
Mr. Ross worked primarily out of
his home, although he had access to IBM office space, which meant
that he was not closely monitored by his employer. On January 21,
2011, Mr. Ross had a scheduled call with his supervisor. He advised
his supervisor that he was double-booked and could not participate
in the call. That afternoon, Mr. Ross pocket-dialed his supervisor,
who overhead two conversations between Mr. Ross and a subcontractor
related to work for his personal company, Compartment Inc.
Mr. Ross' supervisor had a
conversation with him after the pocket-dial incident. During this
conversation, Mr. Ross admitted that he had performed work for
Compartment Inc. However, he asserted that he only spent three
hours a week working for Compartment Inc., and that he tried to do
this while on his lunch hour. Mr. Ross' employment was
terminated a week later for cause. Mr. Ross subsequently commenced
an action for wrongful dismissal.
The Alberta Court of Queen's
Bench upheld the dismissal for cause. The Court found that Mr. Ross
violated IBM's Business Conduct Guidelines by performing
non-IBM related work during business hours. There was a dispute as
to whether he advised his supervisor that he worked three hours a
day, not three hours a week, on his personal business. The Court
found that he had initially advised his supervisor that he worked
three hours a day on his personal business, but had misspoken.
Although the Court noted that there is a difference between three
hours a day verses three hours a week, it found that spending three
hours a week on one's personal business is a significant breach
of the employment relationship.
In coming to its conclusion, the
Court noted that this was not an isolated incident. Mr. Ross had
admitted to working on his personal business for three hours per
week on a consistent basis. It also found that since he was a
senior employee, working autonomously where the working
relationship was imbedded in an honour system, IBM was not required
to provide him with a warning and an opportunity to improve. His
conduct irreparably damaged the employment relationship.
Just cause is a difficult standard
for employers to meet. Key to the employer's success in this
case was its clear policies, outlining its expectations on
employees and the consequences of a breach. In addition, the fact
that the employee held a senior position and worked from home,
where he was not easily monitored, were important to the
Court's determination that he should be dismissed without
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