Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel (on leave) Acting Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Ticket booth worker caught in Web THIS INSTALMENT of You Make the Call features an employee who was dis- missed after inappropriate Internet surfi ng on his work computer. e employee was hired by GO Transit, a government-run commuter transit service in the Greater Toronto Area, in 1981 to be a ticket collector. Six years later, he became a station attendant selling tickets and passes, providing trip information to customers and announcing service delays. He usually worked on his own with no supervision in the station. Supervisors made occasional visits to the station, but not always on the employee's shift. e employee worked in a ticket sales booth with clear glass walls from about waist height, inside a building where there was a newsstand, public washrooms and utility rooms. ere were several entrances to the building, including ones which were outside of the employee's fi eld of view and where his computer monitor was visible. Passenger trains and buses stopped outside the station several times over the course of the day. e computer at the employee's worksta- tion was originally connected only to the GO Transit network, but eventually was given general access to the Internet so he could assist customers in fi nding directions, trip planning, and other information. As a result, GO Transit instituted an electronic commu- nications policy, which stated unacceptable use was "any activity that interferes with the business" and displayed or transmitted sexu- ally oriented material, as well as "any activity for private or personal business." Email use was also to be only for business purposes. GO Transit also had a code of business con- duct and ethical behaviour, which stated corporate assets "are to be used solely for the purposes of conducting the aff airs of the cor- poration." e employee signed an acknowl- edgment of the policies. On March 20, 2013, a third-party network monitoring provider notifi ed GO Transit's IT department that the employee's com- puter made at least 80 blocked adult con- tent web requests in a 24-hour period. Two weeks later, another notice was sent and the resulting report showed the employee had been spending several hours per day brows- ing websites for other than business pur- poses, including sites with adult content and sales sites such as Kajiji and Craigslist, upon which the employee had apparently been placing advertisements and accessing a non- work email account. e employee acknowledged that he may have accidentally accessed "centerfold-type" sites through clicking links and said it was possible he spent four to six hours a day on the Internet. He admitted he checked per- sonal email, posted ads on sales sites, visited soccer sites and listened to music. He also acknowledged he conducted searches to try to circumvent the blocking software and visited Youtube daily for videos and music. He claimed he avoided having adult con- tent on the screen when customers came to the booth, though he admitted if someone came in through a door behind him, it could have happened. GO Transit suspended him pending further investigation. e day after the meeting, the employee sent an email promising it would never hap- pen again if he was given another chance. He later testifi ed his surfi ng was "bad judg- ment." However, GO Transit terminated his employment for violating its policy and code of conduct. YOU MAKE THE CALL Should lesser discipline have been given to the employee? OR Was the employer justifi ed in dismissing the employee? IF YOU SAID lesser discipline was warrant- ed, you're right. e board found GO Tran- sit's rule that its computers were to be used to access the Internet for business purposes only was "very clear" and reasonable, and the employee "broke that rule, repeatedly and deliberately." ere was no doubt discipline was warranted, said the board. It also didn't help the employee's case that he wasn't initially honest at the investigative meeting regarding the extent of his Internet use and was only apologetic once he was dismissed. However, despite the length of time over which the employee breached the policy and showed "general bad judgment," he had a long term of service — 32 years — with no prior discipline on record. " e (employee's) long service favours the conclusion that the unexplained 'bad judg- ment' was a 'one off ' blind spot in an other- wise generally reliable employee," said the board. e board found that the employee knew the diff erence between business and non- business use of the Internet on his work com- puter and "whatever he may have thought before, that his breaching the rule will lead to very serious consequences." e board also found that if the employee were reinstated, GO Transit wouldn't have to make extra eff orts or incur additional costs to supervise him, since his Internet use was already monitored. If the employee didn't mend his ways, GO Transit would know. e board determined that the employ- ee's misconduct was serious enough to give cause to discharge him, but the circum- stances pointed towards a lesser penalty. GO Transit was ordered to reinstate the employ- ee with a lengthy suspension in place of his dismissal, equal to the time since he was dis- charged. e employee wasn't entitled to any compensation for lost wages or benefi ts. e board also made it clear that the suspension was the last step in progressive discipline and any further misconduct could result in dismissal. See Ontario (Metrolinx – GO Transit) and ATU, Local 1587 (Savaryn), Re, 2014 CarswellOnt 17623 (Ont. Grievance Settlement Bd.).

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