Pocket-Dial Bites Employee in the *** and Results in Termination
Beware the butt-dial! The pesky ability of your phone to dial or redial can come back to haunt you. A recent Alberta case which upheld the termination of a man who was fired for working on his personal business during company time provides an example.
The employee was hired in 2010 to fill a senior, full-time sales position. The position was "mobile" which meant that most of the employee's duties were performed outside of the office. During the hiring process the employee advised the employer that he had been self-employed for about three years but would be transitioning his duties with his own business to his wife.
In January 2011, the employee cancelled a scheduled telephone meeting with his supervisor saying that he had double-booked the time. Unfortunately for the employee, he inadvertently butt-dialed his supervisor twice during the scheduled time. The butt-dial calls lasted 98 and 118 seconds respectively and demonstrated that the employee was working for his own business and not for the employer.
The employer conducted a routine investigation during which the employee admitted that he was working for his own business approximately three hours a week. The employer terminated the employment relationship and the employee sued for wrongful dismissal, unsuccessfully.
The employer's Business Conduct Guidelines were a significant factor in its success. Those Guidelines clearly set out that an employee would be engaging in conduct that could result in dismissal if s/he conducted personal business on company time. Conducting personal business included time spent working for a non-competing business. The Guidelines further stated that it was the employee's responsibility to consult his or her manager or the employer's counsel if s/he had any questions about potential conflicts of interest.
The Court rejected the employee's argument that three hours a week, conducted primarily during lunch hours, was insignificant. Rather, given the Guidelines it was clear that the employer was expecting a full-time commitment during company time.
The Lessons for Employers: Clearly articulate your expectations regarding additional employment and conflict of interest situations in written guidelines. Include information so that the employee can clearly understand what is or is not a conflict of interest or moonlighting situation. It is prudent to provide the name and contact information for the person or department that the employees should speak with concerning any question they have. Additionally, the guidelines should put the employees on notice that a breach in policy could result in termination.
The Lesson for Employees: Read, know and follow your employers policy and guidelines regarding conflicts of interest and moonlighting situations. If you have any questions concerning these situations, clarify them with your supervisor and confirm the clarification in writing. Failure to do so could result in your employment being terminated should your employer inadvertently learn of your activities which could occur by something as random as a pocket-dial.
Ross v IBM Canada Ltd., 2015 ABQB 563 https://www.canlii.org/en/ab/abqb/doc/2015/2015abqb563/2015abqb563.pdf
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