Ontario’s Labour Arbitration Board recently held that an employer did not overreact when it terminated an IT employee for cause after he used the employer’s computer to download, store and share thousands of copyrighted works including movies, TV shows, music tracks, games and pornographic material, totalling over half a terabyte of data (a terabyte = 1,000 gigabytes). The board found that the employee acted in flagrant disregard for the employer’s computer information access policy over many years and violated the employer’s trust in him. His poor judgment and immaturity led him to think he was entitled to download the material for his personal entertainment while jeopardizing the security of the employer’s network.
This case was almost unbelievable. The employee’s position involved a great deal of trust. He was responsible for the employer’s network security and had access to all of the secure networks. He had access to credit card information, financial data, human resource files, academic records and health records.
He exposed the network to a virus because the file sharing software he used weakened the network’s security. He caused the employer to receive a “take-down notice” from a video game owner (this is a message from a copyright owner to stop infringing on the owner’s copyright).
Worse, he lied when the employer discovered what he had done and confronted him. After storing half a terabyte of data, he said that he merely downloaded “just the odd movie and some music”.
And even worse, he posted a photo on his Facebook page, showing the rear of a person engaged in rock climbing, to which he added an arrow pointing to the buttocks of the climber and the caption, “[My manager] can kiss this”.
The board had no problem upholding the termination for just cause.
The employer simply argued that taking the evidence as a whole, the employer could no longer trust the employee to perform his job.
The employee tried to argue that a supervisor knew about his misconduct, when really, the supervisor only knew about one small questionable thing that he did.
The board made some interesting comments regarding that supervisor, particularly that the supervisor’s limited knowledge of the employee’s misconduct did not impair the employer’s ability to terminate for cause. Though the supervisor failed in his duty to the employer to investigate the situation further, the employee could not gain leverage to his advantage as a result.
Also, the board made an interesting comment about the insincere apology that the employee gave the employer much later, after the investigation was complete. The board stated that if employees did not apologize until after their union advised them to, the apology could be taken as insincere, and the employer did not have to consider the apology in its decision to terminate.
The board’s view of the employee’s actions can be summed up by this statement:
Immaturity would be another apt way to characterize his approach to his employment responsibilities.
Do you have a policy prohibiting the downloading of copyrighted material in your workplace? Do you think the termination for cause was justified? Do you think the supervisor should have investigated the matter further?
Christina Catenacci
First Reference Human Resources and Compliance Editor
Christina Catenacci, BA, LLB, LLM, PhD
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