Mr. Ross was a senior sales employee for IBM. On January 21, 2011, Mr. Ross cancelled a pre-arranged conference call with his supervisor, stating that he was double booked with another appointment. Later the same day, he accidently pocket-dialed his supervisor while conducting business for his personal furniture/wardrobe company. His supervisor overheard the conversation. A few days after, Mr. Ross was dismissed for moonlighting on IBM’s time.

Mr. Ross admitted that he used his IBM phone to conduct personal business. He also admitted that he spent three hours a week on his business during IBM work hours. He argued, however, that most of this occurred during lunch so it did not to interfere with his employment duties.

The Court found that three hours a week dedicated to personal interests on company time amounted to a significant breach of the employment relationship. Further, the Court noted that IBM’s policies clearly stated that working for a non-competing business on company time was a breach of the employment contract and could result in discipline, up to and including dismissal. Mr. Ross was familiar with the policy and knew or ought to have known that his behaviour could result in termination. Based on Mr. Ross’s repeated misconduct, the Court determined that he was unlikely to change his behaviour. Furthermore, because of the autonomous nature of his position, it would be very difficult to monitor his performance in the future. The Court dismissed Mr. Ross’s wrongful dismissal action against IBM.

Evidence of time theft in this case turned on the pocket-dialed telephone call. IBM also benefited from having clear employment policies regarding appropriate usage of company time. While you can’t count on an accidental pocket-dial, employers would be wise to review and update their policies on a regular basis to address time theft, and to ensure that policies are properly incorporated into employment contracts.

For the full reported decision, see Ross v. IBM Canada Limited, 2015 ABQB 563 (CanLII)