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A legal battle tackled the issue over whether an employee can be fired for "time theft." (iStockphoto/iStockphoto)
A legal battle tackled the issue over whether an employee can be fired for "time theft." (iStockphoto/iStockphoto)

AT WORK

Does surfing the Internet at work qualify as 'time theft'? Add to ...

Most Canadians probably spend at least some time at work surfing the Internet. But it’s hard to match the viewing habits of Franklin Andrews, a federal bureaucrat whose online activity became so excessive it sparked a legal debate about whether someone who surfs the Net too much at work can be fired for “time theft.”

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Mr. Andrews, a senior analyst in the Department of Citizenship and Immigration, spent more than half his working day trolling news and sports websites from his desk in Ottawa and downloading more than 300 pornographic photos. The department fired him in 2009, alleging he committed “time theft” by claiming pay for time not worked. The government hoped to make an example of Mr. Andrews and wanted to set a precedent for other bureaucrats who waste time online.

Mr. Andrews, who has been with the government for 27 years, fought back. He appealed to the Public Service Labour Relations Board and demanded his job back.

During a hearing, Mr. Andrews acknowledged surfing the Net extensively, and he apologized for downloading porn. But he said he wasn’t given enough work to keep him busy and he got bored. He told the tribunal he met every deadline, received positive work appraisals and had never been chastised by managers for perusing the Net too much.

Richard Fader, a lawyer representing the department, argued Mr. Andrews should have asked for more work. “In this case, the evidence showed that [Mr. Andrews]sat at a desk surfing the Internet for half the day, day after day and month after month, claiming pay for time not worked, which was as fraudulent as falsifying a time card,” Mr. Fader argued.

Adjudicator Kate Rogers disagreed. In a ruling released last month, Ms. Rogers said Mr. Andrews had violated federal employment policies by downloading porn, but he had not committed “time theft” by surfing the Net most of the day. She said a long suspension was a more appropriate sanction, and she ordered the department to reinstate Mr. Andrews immediately.

“Is excessive use of the employer’s Internet services for non-work-related purposes the same offence as time theft? I do not believe so,” Ms. Rogers ruled. “I agree with [Mr. Andrews]that time theft as it is generally understood involves an overtly fraudulent act, such as altering a time card, having employees punch in for each other or failing to record or falsely recording attendance on an attendance management system.”

She added that “there can be no mistaking the intent to steal time when an employee has another employee punch his or her time card. But in an environment in which personal use of the employer’s Internet services is permissible on an employee’s own time and in which employees do not punch time cards or actively record their working hours, it becomes much more difficult to infer the requisite intent for a charge of time theft. I simply do not see excessive use of the employer’s Internet services for non-work-related purposes as the beginning of a continuum that ends with time theft.”

Ms. Rogers added that while Mr. Andrews had a responsibility to seek out more work, she found it “surprising that an employee could spend the amount of time that [Mr. Andrews]did on non-work-related activities for months without his supervisors noting a lack of production or engagement.”

Her decision has not sat well with Immigration Minister Jason Kenney.

“Government employees are expected to make efficient use of their time and be productive in their roles,” Mr. Kenney’s spokesperson, Candice Malcolm, said in an e-mail. “The decision to reinstate this individual back into the public service is an insult to taxpayers and undermines public trust in the civil service.”

Toronto employment lawyer Kelly McDermott said she was not surprised by the decision because time-theft cases involving Internet use are difficult. “It’s a bit of a grey area,” she said. “The case law in this area says that unless [employers]particularly define what [they]consider a reasonable and unreasonable amount of surfing the Net during the day, you’ve kind of left it open.”

Ms. McDermott said the proliferation of social media sites such as Facebook have made it even harder for employers to control how much time workers spend online. “It’s a lot more difficult problem to control, so employers are really revamping their policies now and trying to make really darn clear this is our expectation,” she said.

Mr. Andrews was not available, but his lawyer, Andrew Raven, said his client was pleased to get his job back. Mr. Raven added that the government pushed too hard in an effort to set an example. “Time-theft cases normally require an overt act of fraud,” he said. “The fact in this case was that no one was banging on him for not getting his work done. In fact his work was always done. …So that takes this case right out of time-theft cases.”

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