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Nothing you do on your computer at work is private

We are all obsessive about something some time. When those obsessions, however, interfere with your work, you could end up free to pursue them at your leisure.
 
Rick was a structural design supervisor who worked for 14 years before he was terminated.
 
When he first got the job he acknowledged in writing receiving the employer’s “Acceptable Use Policy” with respect to the internet which included a prohibition against using the employer’s computers and systems for anything other than work-related activities and purposes. It said that breaching this policy could result in disciplinary action up to and including dismissal.
 
Rick liked sports. He spent significant time on the employer’s computer looking at sports pages. After a computer audit in 2002, ten years after Rick had started the job, this was discovered. He received a written reprimand from the employer reminding him that this was contrary to company policy and telling him that further incidents of this nature could result in discipline up to and including termination.
 
Rick couldn’t stop himself and by the spring of 2003 he was at it again. He received another warning which stated “Any further incidents of this nature will result in immediate termination of your employment”.
 
Things seemed to settle down for a while although it came out at trial that upper management had been made aware that people suspected Rick was viewing sports sites again in 2005. They did nothing about it and did not alert Rick’s supervisor.
 
When an audit of computer use was done in the fall of 2006, it was found that Rick had been on sports sites on one day for three hours, the next for one and half hours and on eight other days for anywhere between 45 and 90 minutes.
 
It is important to note that Rick was otherwise a good employee in a lower management position. He received raises on a regular basis and positive performance reviews. He was getting the job done. He was not setting a bad example since nobody else actually witnessed him viewing the sports sites.
 
Nonetheless, Rick was terminated without pay in lieu of notice. The employer took the position that there was just cause for the termination of his employment.
 
At trial, Rick argued that since there had been a three-year gap between the last warning and the last incident  in 2006, the first two incidents should not be given much weight since they were stale dated. He also argued that the employer had condoned his behaviour by giving him raises, positive performance reviews and ignoring their suspicions in 2005.
 
Although one can’t tell from reading the decision, it was very likely argued that the time Rick spent looking at sports pages was not the issue. He was a supervisor who was expected and did work as many hours as it took to get the job done without being paid overtime.
 
Notwithstanding all of Rick’s arguments, the court found that there was just cause for Rick’s termination. He was not entitled to pay in lieu of notice despite his 14 years of service. Do you think Rick was treated unfairly?
 
Do you think Rick should have been subjected, at the most, to an unpaid suspension for a week or two to bring the point home before an otherwise good employee lost their livelihood?
 
Now I’m going to tell you the truth. Rick wasn’t looking at sports pages. He was viewing pornography. That is what the Policy on Acceptable Use prohibited. Rick could not keep away from the porn. If you thought Rick was treated unfairly when you thought it was just sports pages and now you’re not sure, why has your opinion changed?
 
In the eyes of the law there should be no difference between viewing sports pages and pornography. Both are legal activities. Remember that nobody could see Rick’s computer screen so he was not offending or upsetting anyone else.
 
Ultimately, although we live in the 21st century, we are, in many respects, still very Victorian. Sex is bad and sinful and Rick has suddenly changed from being a sports nerd to a bad man. Or perhaps  it makes no difference to you and you thought Rick deserved to be fired before you knew it was porn rather than sports he was viewing.
 
Remember, the employer owns the hardware, the software and the internet connection. They can make whatever rules they want about its use. Nothing is private. The IT person knows everything. The irony of this case is that technology is already outstripping it. It is extremely easy for employers to simply limit what kinds of sites employees can access using their system. In the future, Rick’s lawyer would be asking the employer, “If you cared so much, why did you not just eliminate access to adult sites?”
 
Unfortunately for Rick, that technology was not as common when he was digging his hole. Obviously deleting your browser history on the computer you are using makes no difference when a central server is recording your every move.
 
As published in the Hamilton Spectator, November 2, 2009
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com