Canadian Employment Law Today

6 | December 9, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Employee had chance to explain his dereliction of duty performing "non-IBM work or solicit such business on IBM premises or while working on IBM time." e guidelines indicated that a violation could result in discipline up to and including dismissal. Ross wasn't satisfied with his work at IBM, as he wasn't given his own territory or quota. In addition, IBM shifted its asset manage- ment focus to a more regional one instead of national. is led to his supervisor being placed in Calgary instead of Toronto and he felt this pressured him to move to Calgary. In early 2011, Ross received a performance appraisal that described his work as needing improvement. Ross felt it wasn't a fair assess- ment as he couldn't work effectively without his own territory or quota. Pocket dial after cancelled meeting On Jan. 21, 2011, Ross had a scheduled tele- phone meeting — as was scheduled each week — with his supervisor. e supervisor emailed Ross a document to complete so they could discuss during the meeting, but Ross failed to complete it. Ross then can- celled the meeting, saying he had previously scheduled an appointment at the same time. e supervisor telephoned Ross later that day and Ross said he felt somewhat over- whelmed, "like drinking from a fire hose." A short time later on the same day, Ross accidentally "pocket-dialled" his supervisor twice. On the first call, the supervisor could hear Ross having a conversation with a cus- tomer of Ross' private company. Immediate- ly after the call ended, the second call came in and the supervisor could hear more of the conversation. It was also evident Ross was at the home of the customer. e two acciden- tal calls lasted a combined three-and-a-half minutes. at same afternoon, several work emails were sent to Ross but he didn't' respond to any of them. Phone records revealed he had made a call about his own business on the IBM phone. e following week, the supervisor called Ross to ask him if there was anything im- peding Ross' commitment to his work. Ross didn't mention anything regarding his pri- vate company. On Jan. 31, the supervisor discussed the pocket dials with Ross. He sent an email to Ross outlining what was heard on the phone calls and that Ross was spending up to three hours a day working for his own company. e supervisor pointed out that this was a violation of IBM's business conduct guide- lines. In addition, IBM found out Ross had charged some long distance calls related to his own business to his IBM cellphone ac- count and had used IBM equipment for the benefit of his business. Ross immediately responded, saying he spent three hours per week, not per day, as- sisting his own company. He also claimed he tried to ensure he worked during his IBM lunch hours to avoid interfering with his IBM work. However, a week later, on Feb. 7, IBM terminated Ross' employment for cause. After his termination, Ross worked for his own business full-time for two years before joining another company. He sued IBM for wrongful dismissal. e Alberta Court of Queen's Bench found that IBM's business conduct guide- lines had no definition of "IBM time," but it was clear that the intention of the parties in the contract that Ross' employment would be full-time and he would "deal with other people who were working normal working days." e court agreed with Ross' claim that the time spent on his own business was closer to three hours per week, not per day. is was a relatively minor breach of the guidelines, as was the brief use of IBM equipment and small amounts of money from long-distance telephone calls, said the court, which "war- ranted only a comment from IBM to the ef- fect that this was not acceptable." Breach of guidelines wasn't isolated incident However, the court found Ross was given the opportunity to explain his "dereliction of duty" but didn't acknowledge anything was interfering with his ability to devote full- time hours to IBM's business. In addition, physically going to the residence of a cus- tomer of his private business on IBM time on Jan. 21, 2011, was "a major breach" of the business conduct guidelines, said the court. e court also noted that this wasn't an isolated incident — Ross acknowledged working three hours per week on his own business during IBM time all along. "Mr. Ross' own evidence prevents this court from concluding that Mr. Ross was, during the period in question, working full- time for IBM as he was required to do," said the court. "On the contrary, the evidence es- tablishes that Mr. Ross was working for per- sonal gain on IBM time." Ross discussed his private business with IBM before being hired and assured the company he would transfer responsibility to his wife. It was clear he was aware of the guidelines and that he was expected to de- vote all of his attention during IBM business hours to his IBM work. As a result, IBM was not required to give Ross a warning and an opportunity to improve his conduct, said the court. "Not only are there no mitigating circum- stances relating to Mr. Ross' misconduct, but his continuing lack of insight into IBM's entitlement to compliance with the busi- ness conduct guidelines in their entirety es- tablishes that Mr. Ross would be unlikely to change his attitude in the future and that it would be difficult for IBM to monitor any fu- ture conduct, especially in Mr. Ross' autono- mous setting," said the court. e dismissal was upheld. For more information see: • Ross v. IBM Canada Ltd., 2015 Carswell Alta 1684 (Alta. Q.B.). « from POCKET DIAL on page 1 Going to the home of a customer of his private business on IBM time was 'a major breach' of the business conduct guidelines WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as employee off-duty conduct, preventing workplace bullying and violence, social media in the workplace, and biometrics. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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