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Progressive discipline is a key concept in the law of dismissal and discipline. Generally, it takes a lot to warrant just cause for dismissal. When an employee is guilty of misconduct or poor performance, employers must usually give the employee warning that such misconduct isn’t acceptable, giving the employee a chance to improve. Only if the employee doesn’t improve or as multiple instances of misconduct is there just cause for dismissal.

Insubordination is one type of misconduct that is sometimes considered serious enough for the employer to terminate employment, though not always. But if the employee directly disobeys a superior’s orders in order to cover up other misconduct, then dismissal is likely an acceptable route to take for the employer.

A Manitoba employer had just cause to dismiss an employee who deleted files on his work computer, contrary to orders to stop during a disciplinary meeting.

The employee was a senior technology transfer specialist (TTS) at the University of Manitoba technology transfer office. He had no discipline on his record and was considered a high performer. The office helped license university inventions, encouraged collaborative research with industry and university faculty, and educated academics on intellectual property and working with the corporate sector. The employee's role as a TTS was to encourage researchers to make submissions to assess inventions. A high level of confidentiality was expected and as such he had a confidentiality agreement with the university.

The university’s collective agreement outlined a four-step progressive discipline process that included oral warning, letter of warning, unpaid suspension of up to three days, and finally dismissal However, the university could move directly to dismissal if an employee’s misconduct was related to “severe problems such as violent behaviour, insubordination, theft, or sexual harassment,” according to the collective agreement.

In mid-October 2013, the director of the technology transfer office met with the employee to discuss unusual bills from the employee’s work cellphone. The bills showed excessive personal calls, including 50 hours’ worth in one month. The employee’s personal calls resulted in more than thirty dollars in expenses in excess of normal charges.

The employee thought he had stayed within the limits because he didn’t know incoming minutes were billed. The director, who suspected the married employee was involved with a former employee, told the employee informally after the meeting to “Be careful, you’re in dangerous territory.” The employee took this to be a threat to reveal the affair, but agreed to stop making personal calls. The employee offered to reimburse the university but was told it wouldn’t be necessary and no discipline was given out.

Afterwards, the employee became concerned that his phone records were being inspected. He found the office’s phone records on a shared computer drive and determined another employee had looked at them and brought them to the director’s attention. The employee decided he would modify the phone bill records so that only the front page with the account summary would be visible on the shared drive.

Employee modified phone records

The employee copied the files to his own computer and developed a script that would delete all the pages of the bills except for the front pages. However, an error occurred and the employee deleted the pages for all office employees, not just his own. The employee wasn’t too concerned because the necessary information was on the front page of each bill and the finance department had the records as well.

The employee also found an Excel spreadsheet on the shared drive containing his cellphone records but no one else’s. The data came from his bill that contained the 50 hours in excess personal calls.

In mid-January 2014, an administrative finance assistant discovered the altered phone records and contact the university’s information services and technology office (IST). The IST office determined the changes had been made from the employee’s computer and affected more than two years' worth of records. The director was concerned because of the confidential information his office kept.

The director met with the employee on Feb. 12, 2014. It had been decided the employee would be put on paid leave pending investigation but the meeting was for the employee to explain his actions. A union representative was advised and attended, but the employee wasn’t given advance notice.

The employee was surprised but acknowledged removing the phone record details because he didn’t want staff to see the personal details of his phone calls. He denied modifying files because he said other copies existed and he complained the files shouldn’t have been on a shared drive.

The employee was asked why he didn’t raise his privacy concerns with management, but the employee only said he should be able to modify his own records and insisted he had done nothing wrong. He was told he was being placed on a paid leave of absence pending investigation of his work cellphone and computer.

The employee objected to handing over his keys and phone and was upset that an investigation was being performed. However, he relented and returned to his office to retrieve the keys and phone with orders to return immediately.

Employee wiped cellphone’s memory in front of director

The director went with the employee and found him at his desk in a “cold, stoic, unemotional and almost glaring” state, going into his phone settings and wiping the phone of data. The director said urgently in a loud voice for the employee to stop but the employee continued. He told the employee to stop again and after about 30 seconds the employee handed him the phone, wiped of all information. He also turned off his computer. The director was shocked.

The employee was placed on leave and the investigation looked into his emails. A series of email exchanges were discovered between the employee and a former director with whom the employee was close but had left the university under complicated circumstances. The exchanges included the former director asking about the university’s forecast revenue and a copy of a survey that was supposed to be purchased but the employee obtained without paying. The director was concerned because it showed a lack of concern for intellectual property. The employee denied sharing any confidential information or any conflict of interest.

The employee’s office computer was also examined, but when they tried to boot it up, it wouldn’t start. It was believed there was a hard drive failure or a missing hard drive and IST thought it the computer might have been tampered with. The director called the employee to ask him to return the missing hard drive, but the employee said he had not removed anything and they must have damaged his computer. The employee became angry and said the director was trying to fire him.

The office’s management group was shocked that the employee had deleted the contents of his cellphone after being told not to, which was “direct, absolute disobedience” that broke its trust with him. It was also suspicious that the employee’s computer had been working fine before the Feb. 12 meeting and wasn’t afterwards. The employee's insubordination was deemed to be serious enough misconduct to circumvent the normal disciplinary process under the collective agreement’s provision for dismissal without notice.

The university terminated the employee’s employment on Feb. 14 for violating its computer use policy by modifying records, insubordination when he deleted everything on his work cellphone when the director told him not to, and sending confidential information to an external third party.

The arbitrator first looked at whether there was any substance to the employee’s assertion that the director had a vendetta and threatened the employee with the knowledge of his affair and phone calls to the individual. The director’s warning that the employee should be careful could have “two interpretations — friendly or menacing,” said the arbitrator, and the employee assumed the worst. However, there was nothing untoward about the comment and no corroboration of or reason for any threat, said the arbitrator.

The employee claimed he wiped his cellphone in a “moment of panic” and he wanted to protect himself, saying he started the wipe before the director ordered him to stop. However, the account of the director and another employee who witnessed it said the employee continued to proceed after the director issued his order. It also didn't make sense for the director to shout the order if it was already done, said the arbitrator. In addition, the employee “knew from the meeting a few minutes earlier that the university wanted his phone intact for investigation of the contents,” said the arbitrator.

As for the employee’s computer, there was reason for suspicion since the employee was the last person to use it before it stopped working and he had the opportunity and motivation to sabotage it. However, there was a possibility the hard shutdown damaged it and there was no real proof the employee damaged it due to the “technical nature of the problem,” said the arbitrator.

The arbitrator understood the employee’s desire to protect his personal life from others at work, but found his method of dealing with it inappropriate. If he had genuine privacy concerns regarding the computer files, he didn’t approach management or the university’s privacy office. Instead, he acted unilaterally and contrary to university policy and a superior’s orders.

The arbitrator found the employee didn’t intend to alter all of the phone records, just his own in order to protect his information. However, the end result was that many records were altered and the university had a “heightened concern.” This behaviour was also contrary to university policy, giving rise to cause for discipline, said the arbitrator.

The arbitrator noted that the university hadn’t intended to dismiss the employee for the altering of phone records. At that point, it was only going to investigate to determine appropriate discipline. It was only after the employee ignored “a clear, direct order to stop” from the director, that insubordination was added to the mix. The employee had been asked to get his phone and the meeting was still going on when he wiped the phone’s information.

The arbitrator found the employee’s act of insubordination created “a workplace problem too severe to permit the contract of employment to continue, even utilizing the ordinary discipline process under the collective agreement.” The unauthorized alteration of records only fortified the decision, said the arbitrator in upholding the dismissal.

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