Archive for September, 2009

No ‘LOL’ over misuse of email and Internet at work

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

You come into work in the morning, sit down at your desk and turn on the computer. The work day has started, but you’re not ready to get to work just yet. First, you want to check your personal email account, change your Facebook status and send a quick message on Twitter about that show you saw last night. Then it’s time to work, at least until you remember you forgot to check the sports scores or do some online shopping.

This kind of activity is pretty common in the wired workplace where most employees have Internet access. However, access to the Internet and its accompanying forms of communication such as email and instant messaging have opened up whole new areas where employees can get themselves in trouble and employers can lose productivity. But how serious should employers take this kind of activity?

Bruce Power, a power company that runs a nuclear plant near Kincardine, Ont., recently fired a large group of contract employees over what it said was inappropriate use of the Internet and email at work that was discovered after a company investigation. All of those fired were contractors and temporary employees in a variety of positions.

The company didn’t specify what the actual violations were, but misuse of the Internet at a nuclear power plant could raise security concerns, though Bruce Power denied there was any information leak that could lead to security risks. However, if there was no serious security breach, it raises the question how serious the misconduct was to have that many people fired over it. Was the company able to fire them because they were contract workers? If they were permanent full-time workers, would they company have been able to fire them without risking wrongful dismissal suits? It’s a big question for many, as it’s likely all employees with Internet access use it for non-work-related purposes at some point and employers would like to know the best way to address it. Where does one draw the line between simple personal email use to more serious things like surfing inappropriate websites?

While spending too much time on personal email could be considered a relatively minor infraction, what if an employee causes problems on work email under the auspices of the job? An accountant in New Zealand discovered the worst-case scenario for this when her employer fired her for inappropriate use of email. No, she wasn’t sending rude or inappropriate messages to people on her work account. She annoyed her co-workers by sending what the employer termed “confrontational” emails — they were related to the job but were written in red, bold and capital letters. Co-workers were annoyed at this practice and the employer said she fostered disharmony in the workplace. Not surprisingly, the accountant won an unfair dismissal award because the employer didn’t have a clear policy outlining what was acceptable email communication.

Is sending inappropriate emails at work misconduct that justifies formal discipline, or even dismissal? If dismissal, how should an employer determine what level of seriousness can justify it, especially since its likely all employees do it on some level? Coupled with the popularity of social networking sites, Internet and email misuse is something most employers will inevitably have to address in their workplaces.

Fired for political points?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Just cause or political posturing? That’s what enquiring minds want to know after the Ontario government fired the embattled CEO of the Ontario Lottery and Gaming Corporation (OLG).

Kelly McDougald was hired two years ago to head the OLG after it came under scrutiny for a suspicious amount of lottery wins by those involved with the corporation, such as ticket sellers. The corporation courted further controversy under McDougald’s watch in early 2009 when it presented 20 foreign cars as prizes at casinos at the same time the Ontario government was giving bailouts to General Motors and Chrysler.

Still smarting from the eHealth Ontario expenses scandal, the Ontario government moved swiftly, firing McDougald from her $400,000-a-year post on Aug. 31. It claimed just cause over questionable expense accounts filed by OLG staff, including a $3,800 employee dinner and $8 pen refills. One employee claimed $30 for a car wash, without a receipt.  McDougald responded by filing a wrongful dismissal suit for a whopping $9 million.

One is left to wonder if the Ontario government acted a little too fast in this politically charged dismissal. Had it not already been dealing with the eHealth scandal, would it have taken the same action? (eHealth, the province’s electronic health service, faced questions of propriety this year involving questionable expense claims that resulted in bad publicity for the government and tough grilling from opposition parties.)

It’s understandable Premier Dalton McGuinty and his crew in Queen’s Park don’t want a repeat of expense account irregularities, especially since taxpayer money is involved. Perhaps that’s what they were thinking when they gave McDougald the axe — enough is enough and we’re not taking any more wasting of taxpayers’ money. And I’m sure they’re hoping this decisive action will play well to taxpayers.

But unfortunately, given McDougald’s claim, the government’s course of action could end up costing the taxpayers more money. While McDougald conceded some of the expenses “were indeed inappropriate,” she argued others were the costs of doing business and OLG’s net profit increased by $73 million last year. Just cause might not be so cut and dried, especially compared to the government’s handling of the eHealth scandal.

Former eHealth head honcho Sarah Kramer, under whose watch these expenses were filed, took the fall for the scandal but was still given a $317,000 severance package. Given the precedent of paying her, Ontario might be hard-pressed to justify a dismissal for cause with no notice with McDougald.

McDougald may not end up with the $9 million she’s aiming for but, if the courts find an unconvincing case for just cause, she might still be the one to win the lottery with Ontario taxpayers footing the bill.

Should disability benefits cover recovery from cosmetic surgery?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Drawing up policies for benefits such as disability coverage can provide clear definitions of what is and isn’t covered, but sometimes gray areas can pop up that make things more complicated than expected.

Disability benefits, both short- and long-term, are essential for any workers who find themselves unable to work because of illness or injury. Workers are insulated, in a way, from losing their income if something unfortunate befalls them. Indeed, our society tries in most cases to protect the unfortunate, and disability benefits is a form of this protection.

But how far should this protection extend? There’s no doubt someone who gets injured in an accident or falls ill deserves measures to prevent them from falling into poverty, debt or other financial problems. But what if the worker can’t work as the result of a conscious choice to do something unnecessary, such as cosmetic surgery?

A recent Ontario case saw a hospital worker in North Bay, Ont., apply for two weeks of short-term disability because she had to stay in bed for after an operation to recover. However, the surgery was not to fix a serious health problem or save her life. It was elective cosmetic surgery to eliminate excess skin the worker had after losing a significant amount of weight.

The woman’s employer denied her the short-term disability benefits because it said it fell under the category of “self-inflicted injury,” which made it ineligible for benefits. It also said because she booked the time off before the operations, which happened during the leave, she didn’t have a temporary disability at the time she applied for the benefits.

The arbitrator agreed with the employee that classifying the surgery as self-inflicted opened the door to calling any kind of surgery the same and in this case, it was necessary to improve the employee’s self-esteem and quality of life.

Given the circumstances of this particular case, the arbitrator’s decision is understandable. However, it raises the question of what should be done in other situations where the employee makes a conscious decision to do something that will make her unable to work for a while. If an employee decides have a face lift, nose job or breast augmentation and complications or recovery demands she can’t work for a little while, is that considered a disability that warrants disability benefits? What if the cosmetic surgery isn’t simply for vanity but for quality of life reasons, such as the case above? Where is the line drawn between the two instances of cosmetic surgery?

Another gray area could be if the employee injures herself doing something where injury could be reasonably expected. Can this be excluded from coverage in a benefits policy? And how far should the distinction go?