Internet abuse: the usual excuses

By now there are a number of standard excuses employees raise when they are charged with disciplinary offences relating to internet or e-mail abuse. A recent bargaining council arbitration award — Kalam / Bevcap (Nampak) (2006) 15 MEIBC 8.32.1 — illustrates some of these excuses and arguments.

The employer’s version of events was that the employee was dismissed for unacceptable conduct, spending excessive amounts of time on the internet and contravening the employer’s information-technology policy (IT policy). The employee’s access to internet sited had been monitored for a period of five months and he visited almost 15 000 (yes, that is fifteen thousand) sites in this period. He spent about 285 hours a week trawling the internet (this meant that he spent about a quarter of each working day). Most of the sites were pornographic in nature. The employer also gave evidence to the effect that the employee had been informed about the IT policy and that all employees were informed that their internet browsing was being monitored.

The employee conceded that he had contravened the IT policy, but argued that dismissal was too harsh a sanction for this breach. But the employee then went on to argue that he had not been trained (or informed) on how to use the internet after it had been made available to employees. Nor had he read the IT policy — it was a very lengthy document. He was not aware that he was breaching the employer’s IT policy. In other words, the employee was arguing that he did not know that his activities amounted to a breach of workplace rules. Another standard excuse was raised: he saw nothing wrong with what he was doing. Why, he asked, did the employer wait for five months to inform him that what he was doing was wrong? The next step: an allegation that the disciplinary charges and the dismissal were a “plot” to destroy him; an allegation also entailing a perception that he had been singled out. But the employee conceded, during the arbitration proceedings, that it was his duty to read the IT policy and that he had acted irresponsibly.

For the arbitrator, it was relevant not only that the employee had breached the company’s IT policy and that the employee was aware of the policy, but that his internet abuse had considerable cost implications (although these are not canvassed in the arbitration award). Some importance was also attached to the fact that the employee concerned was middle management and that he was not directly supervised. Out of the blue, the arbitrator states that the trust relationship has been severely destroyed — a novel formulation if ever there was one: the trust relationship is either destroyed or severely damaged.

Unfortunately, the arbitrator then gets personal. A picture was presented as evidence: probably an image taken from one of the websites visited by the employee. We are spared details of the picture, but the arbitrator goes a step too far in saying that in viewing the picture, the employee’s behaviour “poses serious concern about his lifestyle, particularly as a manager/leader”. Issues about lifestyle and personal choices are not pertinent in deciding whether a dismissal was fair or not and comments such as these are completely inappropriate. If the employee’s internet activities had a bearing on his performance or his exercise of duties, the arbitrator should have said so.

On the facts, the arbitrator came to the conclusion that the employer’s IT policy was valid and reasonable and that the employer’s disciplinary code unambiguously provides that abuse of internet access is a dismissable offence. In view of the fact that the employee occupied a managerial position, the arbitrator concluded, the dismissal was justified: both substantively and procedurally, the dismissal was fair.

At some stage, some employees are going to come up with new excuses for abusing e-mail and internet: until then, the usual excuses include that they were not aware of the rule, had not read the policy, that they did not know that what they were doing was wrong or that they had been singled out or victimised for some other reason. In preparing for an arbitration on these issues, any prudent employer will prepare a counter-argument in respect of each of these employee contentions.