Butt-Dial Gets Moonlighting Employee in the End

8 octobre 2015 | Thomas V. Duke

( Disponible en anglais seulement )

The inadvertent pocket-dial or “butt-dial” has happened to everyone.  In most cases, there are no real consequences, other than a puzzled or frustrated person on the other end of the call.

In a recent Alberta case Ross v. IBM Canada Limited, 2015, ABQB 563; however, a highly paid employee was summarily terminated for cause when the employer learned, after two inadvertent, butt-dial communications, that their employee was regularly working for his own private corporation on what the employer considered to be company time. The employee sued for wrongful dismissal, but an Alberta Court of Queen’s Bench has upheld the dismissal for cause.

The Plaintiff was hired by IBM Canada for a full-time position.  During the hiring process, the Plaintiff informed IBM that he had been president of a privately held business in custom residential storage components.  The Plaintiff told IBM that he would transfer all operational responsibilities of this company to his wife, upon acceptance of the job.

IBM also had a clear business conduct guideline with respect to the use of IBM’s time and assets.

The Plaintiff declined to attend a scheduled meeting telling his supervisor that he was “double-booked” with respect to an earlier scheduled appointment. 

That afternoon, the fateful pocket-dialed calls occurred and the IBM supervisor heard portions of conversations that the Plaintiff was having with one of the customers for his own business.

Days later, the Plaintiff was terminated for cause.  IBM was able to prove that the Plaintiff charged some long distance calls for his own corporation to the IBM account and also made minor use of IBM equipment for his side-businesses benefit.

The Plaintiff suspected that he was terminated on the basis that he did not contribute to the close of any deals in his time at IBM.  Justice Veit concluded that the Plaintiff performed non-IBM work while on the company’s time.  The Court concluded that this was not an isolated incident and that the evidence established, he was working for personal gain on IBM time.

Justice Veit further concluded that IBM was not required to give the Plaintiff warning or an opportunity to change his behaviour.  It was held that the Plaintiff was a senior, mobile and autonomous employee.  The relationship was “imbedded in an honour system”.  Accordingly, IBM’s conclusion that the breach of trust was not repairable, was upheld.

The employer further counterclaimed for unjust enrichment while taking salary from IBM.  The counterclaim for damages was denied.

This case is an encouraging reminder for employers that just cause, in circumstances where there is time theft, can be upheld.  Employers should also be reminded that if they become aware of instances of time theft, even though odd circumstances such as a butt-dial, this evidence must be preserved, as it will be critical in establishing cause.

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