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Working from home on an honour system

Increasingly, employees work away from the office without supervision on an honour system.   Employers have neither the interest nor ability to micromanage how those employees use their time.  Employees who are caught abusing that freedom, however, can more easily be terminated without notice. 
 
When Matt was recruited to become a travelling software sales person, he was running a company with his spouse that designed, manufactured, sold and installed custom residential storage components.  His spouse was in charge of administration and he was in charge of operations.  Matt told the employer that if they hired him, he would transfer operational responsibilities to his spouse. 
 
As part of the job offer, Matt was required to sign off on the business conduct guidelines.  It included a prohibition against performing outside work or soliciting such business on the company’s premises, using the company’s equipment or during the company’s time.  Matt was going to earn over $140,000.00 per year and the company expected full time commitment.  He knew, because he signed off on it, that violation of the business conduct guidelines could lead to disciplinary action including termination. 
 
One day Matt cancelled his weekly telephone meeting with his boss, claiming that he had a client appointment that conflicted.  Technically, that was not a lie.  The problem was that the client was buying storage components not software from Matt’s employer. 
 
Butt dialing can be a funny thing.  It can be an annoying thing.  It can sometimes be embarrassing.  For Matt, it lost him his job. 
 
Twice, during the afternoon he was supposed to be having his weekly telephone meeting with the boss, he butt dialed the boss instead.  The boss could hear him having a conversation with a subcontractor installing storage equipment in the home of a client of Matt’s private company. 
 
During that same afternoon, there were two work emails sent to Matt which he ignored.  On further investigation, it was found that Matt had used the company cell phone for a few long distance calls on behalf of his company.
 
Matt was terminated and the company claimed that he was not entitled to pay in lieu of notice since it had just cause to terminate him.
 
Matt sued claiming that the time he spent on his own company was minimal and that the worst he should have received was a warning, not a termination.
 
Things only got worse for Matt in the courtroom.  When he was asked why his wife had not dealt with the subcontractor that day, Matt explained that his wife was not involved in designing the storage products and therefore had no ability to give instructions on installation.  Oops.  Clearly, Matt had breached his promise to the employer to transfer operational issues to his wife when he started the new job.  Matt claimed that he only spent three hours per week working for his private company but I’m not sure that the Judge believed him. The Judge found that even if that were true, the employer had the right to take the position, in all the circumstances, that it could no longer trust Matt in an honour system where he worked independently. 
 
Even if Matt had not been caught red butted as a result of his pocket dialing, sooner or later the truth would have come out. The IT person knows everything. If there is something going on in your life you want to keep private, don’t use a work cell phone and stay away from work email.  Don’t save personal files on a company computer or server. 
 
It is not uncommon for an employer contemplating the challenge of how to terminate someone’s employment cheaply to start by asking the IT department to do a thorough activity review.  Those searches, unfortunately, turn up everything from pornography to racially offensive or sexually harassing emails. 
 
The review can also turn up the two hours you spent on Wednesday playing solitaire at your desk and, of course, the time you spent on the company computer running your part time business.
 
Few people are sufficiently unlucky to end up in Matt’s shoes and butt dial their boss when they’re playing hooky.  But when the mortgage has to be paid, why take the chance?
 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com